BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

26^TH DAY OF FEBRUARY 2016

O R D E R

SMT. M. YASHODHAMMA, MEMBER

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 seeking direction against Opposite Party (herein after referred as OP) to refund Rs.3,10,000/- along with interest at 20% per annum and Rs.25,000/- towards cost of litigation on the allegations of deficiency in service.

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

OP is a developer, developing farm land project in the name and style of “Divine Euphoria” in a total area of 150 acres of land situated at Maralabekuppe village, Uyamballi Hobli, Kanakapur Taluk, Ramanagar District.  OP issued the brochures publicizing the scheme to general public stating the OP is providing all the facilities like Walking track, Swimming pool, Gym etc. Hence, the complainant with an intention to have a place to lead her life decided to negotiate with OP.  The OP after negotiation entered into an agreement dated 02.07.2010 with the complainant to sell a property to an extent of 5,445 square feet (5 Guntas) in the intended farm land project developed by OP for a sale consideration of Rs.3,60,000/-. On 28.06.2013 complainant paid Rs.10,000/-, on 08.12.2010 Rs.25,000/-, on 05.05.2011, Rs.25,000/-, on 17.09.2011 Rs.25,000/-, 22.07.2011, Rs.25,000/- on 14.03.2011,  Rs.50,000/- on 13.03.2013  Rs.25,000/-, on 11.08.2012 Rs.25,000/-.  In all total sum of Rs.3,10,000/- to OP on different dates.  OP has also issued the respective receipts for having acknowledged the receipt of the said amount.  Only a sum of Rs.50,000/- was due by the complainant to OP, but OP failed to comply with the terms of the agreement dated 02.07.2010.  Complainant lost her hope in getting the property as assured by OP.   She decided to cancel the agreement and restricted her rights to recover the amount paid by her.   Since, OPs failed to execute the sale deed within a period of 11 months, complainant got issued legal notice through her counsel on 16.03.2015 calling upon OP to execute the sale deed in respect of the schedule property within a period of one month and she is always ready and willing to do her part of the contract, failing which she will initiate legal proceedings at the cost of the OP.  There was no response from OP to the said notice.  Hence, complainant felt deficiency in service on the part of the OP.  Under the circumstances, she is advised to file this complaint against OP for appropriate relief.

3.  On appearance OP filed version admitting that OP has executed an agreement dated 02.07.2010 to sell property to an extent of 5445 square feet (5 Guntas) for a sale consideration of Rs.3,60,000/- as true.  Further denying that complainant paid a sum of Rs.3,10,000/- out of total sale consideration of Rs.3,60,000/- as false and complainant has paid a sum of Rs.2,10,000/- and not a sum of Rs.3,10,000/- as alleged by the complainant.  Further OP contended that complainant has not approached OP at any point of time to get registered the property agreed to sell.  Among the other grounds, OP prayed for dismissal of the complaint.

4.  In support of the defence version OP has failed to file its affidavit by way of evidence inspite of giving sufficient opportunity.  Hence, the version filed by the OP cannot be considered. 

5. In support of the complaint averments Smt.Dr.B.R.Varalakshmi, who being the complainant in this case filed her affidavit by way of evidence reiterating the complaint averments and also filed written arguments.

6.  We have perused the documents produced by the complainant.  Document No.1 is copy of the sale agreement dated 02.07.2010 entered into between the complainant and the OP under the said agreement OP has acknowledged the receipt of Rs.1,00,000/- from the complainant towards advance sale consideration by way of cheque drawn on Bank of India at Sanjaynagar Branch and complainant should pay balance payment at the time of registration.  OP has commenced the project and has agreed to complete a project within a period of 11 months, failing which OP will compensate suitably with 20% interest per annum.  OP also agreed to provide the amenities like Club House, Swimming pool, mini Golf, Jogging track, Horse track, Indoor and outdoor games, children’s park, small boating Fish pond, Indoor aquarium, Mini natural Forest, Herbal plantation, Antique Gallery, Duck, rabbit and cattle yard, Dog and Persian cat breeding house, Small temple and Library, Meditation Centre, Bird Sanctuary- which houses- Ostrich, Emus, Turkey, Lovebirds, Pigeon etc., Health Centre (Ayurvedic).  Document No.2 to 9 are copies of the seven receipts issued by OP in the name of Dr.S.Shyamsundar i.e., the husband of the complainant and one receipts issued by OP in the name of complainant along with her husband name and totally for a sum of Rs.2,10,000/- paid on different dates between 05.05.2011 to 28.06.2013.  Document No.10 is copy of the legal notice issued on behalf of the complainant to OP dated 16.03.2015 calling upon OP to register the sale deed in respect of the schedule property within a period of one month and complainant is ready and willing to do her part of the contract failing which she will initiate legal proceedings at the cost of the OP.  Document No.11 is served postal acknowledgement card and postal receipts and another returned RPAD cover.

7. On perusal of oral and documentary evidence of the complainant, it is made crystal clear that OP is a developer.  The complainant attracted by the offer made by OP, in their proposed project namely “divine Euphoria” in Sy. No.176 situated at Maralabekuppe village, Uyamballi Hobli, Kanakapura, Taluk, Ramanagara district and offered various other amenities, entered into sale agreement dated 02.07.2010 with OP to purchase 5545 square feet of farm land (5 Guntas) for a total sale consideration of Rs.3,60,000/-.  Complainant paid Rs.1,00,000/- on the date of agreement of sale. The said sale agreement has been signed by both the parties and balance amount of Rs.2,10,000/- on different dates starting from 08.12.2010 to 28.03.2013 as per Document No.2 to 9 receipts issued by OP. Totally complainant has paid a sum of Rs.3,10,000/- to OP.  Thus complainant has proved the payment of Rs.3,10,000/- to OP.  The balance amount of Rs.50,000/- was agreed to be payable at the time of registration. Complainant was ready to pay balance amount of Rs.50,000/- to OP but OP has failed to comply the terms of agreement and failed to execute sale deed within 11 months as agreed.  Hence, complainant sought cancellation of sale agreement.  Complainant got issued legal notice dated 16.03.2015 as per Document No.10, calling upon OP to execute sale deed in respect of the plot within a period of one month and she is ready to perform her part of the contract, failing which she will initiate legal proceedings for recovery of the same.  Inspite of service of notice as per Document No.11 there was no response from OP.  Hence, this complaint.

8.  From the available materials on record, it is crystal clear that OP having received a sum of Rs. 3,10,000/- from the complainant on different dates starting from 02.07.2010 to 28.03.2013 has neither allotted the plot as agreed under the sale agreement nor refunded the amount to the complainant.  OP has retained the amount till date without allotting the land or refunding the amount to the complainant.  In case of default OP has agreed to pay interest at the rate of 20% per annum as per clause 4 of agreement of sale.  This act of OP in neither executing the sale deed nor refunding the amount to the complainant amounts to deficiency in service on the part of OP.  We are satisfied that complainant proved deficiency in service against OP.  Under the circumstances, OP is liable to refund Rs.3,10,000/- to the complainant along with interest at the rate of 20% per annum from the date of respective payment till realization along with litigation cost of Rs.5,000/- to the complainant.  Accordingly, we proceed to pass the following:

 O R D E R

1. The complaint filed by complainant is allowed in part. 

2. OP is directed to refund Rs.3,10,000/- to the complainant along with interest at the rate of 20% per annum from the date of respective payment till realization along with litigation cost of Rs.5,000/- to the complainant. 

3. This order shall be complied within 30 days from the date of receipt of this order.

4. Supply free copy of this order to both the parties.

(Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Forum by us on this the 26^th day of February 2016)

 MEMBER                                                              PRESIDENT

NRS* 

CC.No.978/2015

Witnesses examined on behalf of the complainant dated 03.12.2015 1) Smt.Dr.B.R.Varalakshmi

Witnesses examined on behalf of the OP – Absent

List of documents produced by the OP – Nil

MEMBER                                                               PRESIDENT