BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL

FORUM AT BANGALORE URBAN

11^th DAY OF JUNE 2015

               PRESENT:- SRI. J.N.HAVANUR                  PRESIDENT

                                SMT. M. YASHODHAMMA        MEMBER                                                         

                  O R D E R

SRI. J.N. HAVANUR, PRESIDENT              

This is a complaint filed by the complainant against the OPs.1 & 2 Under Section 12 of the Consumer Protection Act, praying to pass an order directing the OPs to refund Rs.48,000/- paid towards sale consideration of site, Rs.4,000/- towards development charges, Rs.7,200/- towards registration charges and Rs.200/- towards membership fee in total Rs.59,400/- along with 18% interest and to pay a compensation of Rs.5,00,000/- for inconvenience, mental agony and harassment and other reliefs.

2. The brief facts of the complaint can be stated as under:

OP-1 is a developer of lands for the formation of residential layout with complete civic amenities having registered office at the above mentioned address.  OP-2 is the Managing Director of said concern.  OPs invited application for the allotment of site in proposed VAJRAGIRI Township, Mysore Road, Bangalore.  In pursuance of the said proposal complainant became the member of said scheme by paying Rs.1,000/- towards membership fee and 1^st instalment on 18.11.1994 and his membership number is 157.  Subsequently OPs entered into agreement to sell with complainant on 10.01.1995.  As per the terms and conditions of the said agreement to sell, the sale consideration was fixed at Rs.48,000/- payable in 60 monthly instalments of Rs.800/- and on completion of 60 instalments a site measuring 1200 square feet was to be allotted to the complainant.  Accordingly the complainant paid the 60 instalments total Rs.48,000/- along with development charges of Rs.7,200/- to OPs by 19.05.2000.  The complainant fulfilled his part of obligation under the agreement, however OPs have failed to discharge their part of obligation under the agreement.  The OPs having received full price of site have not delivered possession of the plot to the complainant within time stipulated or within a reasonable time without any justifiable cause.  Now the complainant has learnt that OPs have failed to materialize in its entirety.  The proposed layout of OPs was promoted on which commercial and profit motive by the OPs and there was assurance and commitment in regard to delivery of possession and there were any justifiable reason for the failure to deliver possession.  There has been negligence, short coming and inadequacy on the part of OPs in the performance of obligations in regard to delivery of the possession of the site.  There is a breach of terms and conditions of the agreement by the OPs which has resulted into grave deficiency of service on the part of OPs.  Under the circumstances, the complainant got issued a legal notice to OP-1 on 27.11.2012.  Though OP-1 received the notice, he did not respond.  Because of unfair trade practice of OPs, complainant has suffered inconvenience, heavy financial loss and undergone mental agony.  Hence the complainant has come up with present complaint.    

3. After service of the notice, OPs-1 and 2 have appeared through their counsel and filed their version contending interalia as under:

The OP Company is a registered body under the Indian Companies Act, 1956, having its registered office at No.1, Chandralok, 5^th Cross, Gandhinagar, Bangalore and same was established for the purpose of developing lands for the formation of residential layouts with civic amenities and to allot the same to its members.  The OP Company in order to form the residential layout was required to obtain the permission from various authorities namely Deputy Commissioner, Bangalore, Bangalore Metropolitan Region Development Authority (BMRDA) and Bangalore-Mysore Infrastructure Corridor Area Planning Authority (BMICAPA).  The OP Company applied for conversion of the agricultural land into non agricultural purposes to form the layout to the concerned Revenue Department.  OP Company proposed to form the layout comes within the purview of BMICAPA and therefore the Revenue Department sought clarification from BMICAPA by its letter dated 18.07.2001.  However BMICAPA has issued a letter dated 13.08.2001 to the Revenue Department to the effect that the land in question cannot be converted for non agricultural purposes.  So under the circumstances, OP is not in a position to form the residential layout as proposed earlier.  When the OP Company took a project, there were no legal hurdles for the formation of the layout.  But due to the change in circumstances the OP is not in a position to complete the project.  So under the circumstances, OP is not in a position to complete the formation of residential layout and to execute the sale deed pursuant to the agreement executed by OP in favour of the complainant.  The complainant paid his last instalment in the years 1998.  The cause of action for filing the above complaint commences from last day of payment of instalment.  The complainant has not taken any steps to take the above complaint towards alleged deficiency of service within two years from the last payment made by him.  So complaint is liable to be dismissed at the threshold itself on the ground of limitation.  OP Company acquired sufficient land in and around Seshagirihalli, Talaguppe, Manchanayakanahalli, Bannikuppe and Kurubarakarenahalli, Bidadi Hobli, Ramanagara Taluk, Hampapura and Krishnarajapura, Kengeri Hobli, Bangalore South Taluk.  OP Company had contemplated to allot a site in favour of the complainant at Bannikuppe and Kurubarakarenahalli.  However the land acquired by OP Company at Bannikuppe and Kurubarakarenalli has been notified for acquisition by KIADB.  KIADB issued preliminary notification to acquire land of OP Company situated at Bannikuppe and Kurubarakarenahalli and on account of it OP Company is not in a position to allot the site.  The acquisition proceedings have not reached its finality as no final notification has been issued by KIADB.  OP Company is waiting for finalization of the acquisition proceedings.  Since land is under acquisition the amount paid by OP Company to the owners of the above said land has also been blocked.  OP Company is ready to allot the site in favour of the complainant if he waits till the finalization of the acquisition proceedings, in the event of KIADB drops the acquisition proceedings.  If the complainant is not ready to wait till then, OP Company is ready to repay the amount paid by the complainant with simple interest.  The non allotment of site is not intentional but because of the reasons which are beyond the control of OP Company.  OP Company has not committed any breach of conditions of the agreement.  The site allotted in favour of the complainant is entangled in acquisition proceedings initiated by KIADB, so OP Company is not in a position to execute sale deed.  OP Company has not committed any breach of conditions of the agreement.  The non execution of sale deed is not intentional.  OP Company therefore is not liable to pay any damages as claimed by the complainant.  Hence, it is prayed to dismiss the complaint of complainant with exemplary cost.  

4. So from the averments of the complaint of the complainant and version of Opposite Parties.1 & 2 the following points arise for our consideration as under:

5. Our answer to the following points:

REASONS

6. So as to prove the case the complainant has filed his affidavit by way of evidence and produced documents along with complaint and 4 original documents along with memo dated 26.07.2013.  On the other hand one C.P Gangadhareshwara who being Director of OP Company has filed affidavit on behalf OP and produced documents along with memo dated 24.09.2013.

7. Sri.Shashikant who being complainant has stated in his affidavit filed by way of evidence that OP-1 is the developer of lands for the formation of residential layout and OP-2 is the Managing Director.  OPs invited application for the allotment of sites in the proposed VAJRAGIRI Township project, Mysore Road, Bangalore.  In pursuance of the said proposal he enrolled himself as the member of said scheme by paying Rs.1,000/- towards membership fee and 1^st instalment on 18.11.1994 and his membership number was 157.  OPs entered into agreement to sell with him on 10.01.1995 and as per the terms and conditions of the said agreement to sell, the sale consideration was fixed at Rs.48,000/- payable in 60 monthly instalments of Rs.800/- each and on completion of 60 instalments a site measuring 1200 square feet having dimension of 30x40 was to be allotted to him.  Accordingly he paid the 60 instalments totaling to Rs.48,000/- along with development charges and registration charges to OP by 19.05.2000.  As per the agreement to sell, OPs undertook to register the site after payment of 60 instalments in his favour or his nominee.  Though he fulfilled his part of obligation under the agreement, OPs have failed to discharge their part of obligation under the agreement by registering the site.  Whenever he contacted OPs for registration of the site they were postponing the same by giving one or other reason.  There was assurance and commitment concerning the sale of site and there was any justifiable reason for the non registration of the site by OPs.  There has been negligence, short coming and inadequacy on the part of OPs in the performance of obligations in respect of sale and registration of the site.  There is a breach of terms and conditions of the agreement by the OPs which has resulted grave deficiency of service by the OPs.  So he got issued a legal notice to OPs on 27.11.2012.  The instant case is not barred by time.  So he has come up present complaint.  So complaint be allowed and grant reliefs as prayed for.

8. Let us have a look at the relevant documents of the complainant.  Document No.1 of the complainant list dated 26.07.2013 is the letter of OP dated 10.01.1995 addressed to complainant stating that they are herewith enclosed agreement to sell executed in his favour.  They are holding shortly the Bhoomi Pooja on the site for which complainant is requested to grace.  The dates of Bhoomi Pooja and monthly draw will be communicated to him very shortly and that letter is annexed with original agreement to sell dated 10.01.1995 executed by OP in favour of complainant agreeing to make sale of site measuring 30x40 for Rs.48,000/- to be payable in 60 monthly instalments at Rs.800/- per month and on completion of 60 monthly instalments the site shall be registered in the name of the complainant.  In the said agreement there is no mention that time is essence of contract.  2^nd document consists of 34 original receipts issued by OP in the name of complainant for having paid the instalments amounting to Rs.48,000/- development charges, registration charges and charges towards membership.  3^rd document is the legal notice copy of complainant addressed to OP dated 27.11.2012 calling upon OP to refund Rs.48,000/-, Rs.7,200/-, membership fee along with 18% interest and compensation of Rs.5,00,000/- within 15 days failing which legal action will be taken against OP.  AD card is produced for having served notice on the OP.  The documents produced along with complaint are the copies of original documents produced along with memo dated 26.07.2013 of the complainant.  The oral evidence of complainant as described supra that after receiving site value, development charges, registration charges and membership fee OPs have neither executed sale deed nor refunded the amount stands corroborated by agreement to sell, receipts, legal notice copy and AD card produced by complainant.

9. C.P Gangadhareshwara who being Director of has filed affidavit on behalf OP stating that their Company applied for conversion of agricultural land into non agricultural land to form the layout.  But BMICAPA has issued a letter dated 13.08.2001 to Revenue Department that land in question cannot be converted for non agricultural purpose.  So their Company is not in a position to form the residential layout as proposed and to execute the sale deed pursuant to agreement executed by their Company in favour of the complainant.  The complainant has paid his last instalment in the year 1998.  The cause of action for filing the complaint arouse from the last date of payment of his instalment.  The complainant has not taken steps towards alleged deficiency of service within two years from the last payment made by him.  So complaint be dismissed on the ground of limitation.  The Company acquired sufficient land in and around Seshagirihalli, Talaguppe, Bannikuppe and Manchanayakanahalli etc., but land acquired by their Company at Bannikuppe and Kurubarakarenahalli has been notified for acquisition by KIADB.  The acquisition proceedings have not reached its finality.  So the amount paid by their Company to the owners of the above land has been blocked.  Their Company is ready to allot site to complainant if he waits till finalization of acquisition proceedings and if he is not ready to wait, their Company is ready to repay the amount to the complainant with simple interest.  Their Company has not committed any breach of condition of the agreement.  There is no deficiency of service.  The non execution of the sale deed is not intentional but because of reasons which are beyond the control of their Company.  The Company is not liable to pay any damages.  So the complaint be dismissed with exemplary cost.  The complainant has produced some copies of sale deeds executed by land owners in the name of OP and gazette copy for having initiated acquisition proceedings in respect of some of the lands of OP.

10. On making careful scrutiny of oral and documentary evidence of both the parties as described above, it is no doubt true that the complainant has become the member of OP Company and paid sital value as per the agreement by making instalments and also paid development charges and registration charges and OPs have executed the agreement to sell in favour of the complainant.  Inspite of repeated requests and reminders, the OPs have neither executed sale deed nor refunded amount to the complainant.  The main grievance of OP is that after purchase of the land from original owners some of the lands have been acquired by KIADB.  Acquisition proceedings is going on and till finalization of acquisition proceedings OP cannot be allot any site to the complainant and if complainant waits till finalization of acquisition their Company is ready to allot the site and if not they are ready to return amount of the complainant along with simple interest.  Having executed agreement to sell by OP after collecting entire sital value, registration charges and development charges from the complainant, it is the bounden duty of the OPs to execute the sale deed in respect of site measuring 30x40 as per the agreement.  Instead of doing so, the OP is putting forth the reason of acquisition proceedings by KIADB which is not warranted as per the agreement between the parties.  Further in the agreement to sell executed by OP in favour of complainant time is not the essence of the contract.  So the present complaint of complainant is very much maintainable and it is not barred by limitation.

11. So taking the oral and documentary evidence of complainant and compare the same with material evidence of OP, it is vivid and clear that the complainant who comes to Forum seeking relief has proved this point with convincing material evidence that OPs have not acted in accordance with terms and conditions of agreement between the parties and inspite of requests and reminders the OPs have neither executed the sale deeds by allotting a site nor refunded the amount to the complainant.  More over on account of negligence of OPs the complainant has been deprived of the site even though he paid entire amount to the OP and as such we hold that the oral and documentary evidence of complainant placed before the Forum are more believable, trustworthy and acted upon than the material evidence of OP.  Accordingly, we answer this point in a affirmative.  

12. In view of our affirmative finding on point No.1 the complainant is entitled to claim the sital value, development charges, registration charges and membership fee paid to OP and in all the complainant has paid Rs.59,400/- to the OP.  So the complainant is entitled to claim the said amount along with interest @ 18% p.a.  Besides due to negligence of OPs the complainant has lost the site.  So the complainant is entitled to deprivation of site to the tune of Rs.1,50,000/- from OPs.  So OPs.1 & 2 are jointly and severally directed to refund Rs.59,400/- to the complainant along with 18% interest from 20.05.2000 to till the date of realization.  OPs.1 & 2 are further directed to pay Rs.1,50,000/- to the complainant towards deprivation of the site along with litigation cost of Rs.5,000/-.  This order is to be complied by OPs.1 & 2 within 30 days from the date of this order.  Accordingly, we answer this point.  In the result, for the foregoing reasons, we proceed to pass the following:    

       O R D E R

The complaint of the complainant is partly allowed.  OPs.1 & 2 are jointly and severally directed to refund Rs.59,400/- to the complainant along with interest @ 18% p.a from 20.05.2000 to till the date of realization.  OPs.1 & 2 are further directed to pay Rs.1,50,000/- to the complainant towards deprivation of the site along with litigation cost of Rs.5,000/-. 

This order is to be complied by OPs.1 & 2 within 30 days from the date of the order.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 11^th day of June 2015)

MEMBER                                                                 PRESIDENT

Vln* 

Witnesses examined on behalf of the complainant dated 26.07.2013

1. Sri.Shashikant,

Witnesses examined on behalf of the OPs dated 16.07.2013

1.      C.P Gangadhareshwara

          OP  -       Nil

MEMBER                                                                 PRESIDENT

Vln*