COMPLAINT FILED ON: 13.04.2010
DISPOSED ON: 05.02.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
DATED THIS THE 5TH FEBRUARY 2011
PRESENT:- SRI. B.S. REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI. A. MUNIYAPPA MEMBER
COMPLAINT No.818/2010
Complainants OPPOSITE PARTIES | 1. N.S. Nagendra Prasad, S/o Late Shivanna, Hindu, Aged 51 years. 2. Smt. C.S. Prabhavathi, W/o N.S. Nagendra Prasad, Hindu, Aged 41 years. Both are R/at No.C-8, Gagan Manor, Ganesh Block, Dinnur Main Road, R.T. Nagar, Bangalore – 32. Advocate: Sri. T.C. Sathish Kumar & Others V/s. 1. M/s Metrocorp, No.17, Jayamahal Road, Bangalore – 560 046. Rep: by its Chairman. 2. Deepak Krishnappa, Chairman, M/s Metrocorp, No.17, Jayamahal Road, Bangalore – 560 046. Advocate: Sri. Nagaraj Damodar & Others |
O R D E R
SRI. B.S. REDDY, PRESIDENT
The complainants filed this complaint U/s. 12 of the Consumer Protection Act of 1986, seeking direction against the Opposite Parties (herein after called as O.Ps) to refund the advance amount of Rs.5,00,000/- with interest at 2% p.m. along with litigation costs on the allegations of deficiency in service on the part of the OPs.
2. The case of the complainants to be stated in brief is that:
The complainant No.1 is the husband of complainant No.2. OP-1 is a company and OP-2 is its Chairman OPs posed as land developer and construction of villas / bungalows, issued advertisement in daily news papers and also put in the web. The complainants after going through the broachers and video presentation of the project, paid an amount of Rs.5,00,000/- on 15.11.2006 towards booking of villa to OPs. OPs received the amount through cheque and assured to provide well built house in short time. On passage of time, it was made known to complainants that the proposed construction of villas has been shifted from one area to other area and thereby complainants were allotted a different villa No.H-1 in place of H-12 in the same phase-II of nirvana, with specific intimation to keep in touch with OPs. OPs observed silence over without any intimation as to the progress in respective villa construction on approving the land by BIAAPA in accordance of layout and sanction of building plans etc., The complainants were kept in surprise without any progressive intimations and thereby they were forced to interact with OPs as to know the progress made by them in this regard. On recent verification made during July and August – 2009, it was learnt that the OPs have not even purchased the land to form the layout and have not placed any documents for approval of the layout and construction of villas in lands for nirvana phase-II. The complainants caused notices on 01.09.2009 and 18.09.2009 demanding to refund the deposited amount of Rs.5,00,000/- with interest. OPs slept over the matter without giving any attention either to progress their project or to refund the deposited amount. E-mail message has been passed to the complainants during the end of September – 2009 by OPs undertaking to refund the said deposited amount with interest in short period. OPs failed to refund the amount; the complainants felt deficiency in service on the part of the OPs and approached with this complaint seeking the reliefs stated above.
3. On appearance, OPs filed the version contending that the complaint does not fall under the purview of the complaint as envisaged under Section 2 of the Consumer Protection Act, the same is liable to be dismissed. The complaint is in the nature of recovery of money, the complainants have to approach the Civil Court. The complainants voluntarily approached OP showing their interest in the project introduced by OPs. OPs have made honest effort to explain the details of the project to the complainants. It is only after understanding about the project and agreeing to the terms and conditions, the complainants got themselves registered with OPs and paid booking amount of Rs.5,00,000/-, therefore the complainants are bound by the terms and conditions of the allotment. OPs have allotted villa No.H-1 instead of H-12 for the benefit and convenience of the complainants. The change of villa was effected only after the complainants agreed for the same. As per the payment schedule the OPs communicated to the complainants to make the payment and enter into an agreement to sell in respect of their villa, but the complainants failed to come forward for entering into an agreement to sell. It is denied that OPs have not purchased the land; in fact the work of construction is going on in full swing in respect of the villas who have made the payments in time. When the OPs were anticipating the payment of amount by the complainants as per schedule to enter into an agreement of sale, the complainants cancelled the booking of villa No.H-1 and sought for refund of the booking amount without there being any reasonable cause. Since the payment of Rs.5,00,000/- was only an initial booking amount and as per clause – 11 of the agreed terms and conditions of booking, in case of cancellation of villa within 15 days of allotment Rs.50,000/- will be considered as the cancellation amount to be deducted and the balance will be refunded only after making a new sale of the villa. Any cancellation after 15 days will entitle a cancellation fee equivalent to 5% of the villa cost. Thus the complainants who requested to cancel the booking and pay back the booking amount entitled the OPs to deduct 5% of the cancellation fee equivalent to 5% of the villa cost. Accordingly OPs are ready to refund the balance after deducting the cancellation fee that too only after making new sale of villa. The complainants have not come forward to get agreement to sell by paying the amount as stipulated in the payment schedule; absolutely no lapses can be attributed on the OPs for the alleged delay caused in developing the said villa allotted to the complainants. In fact the decision of the complainants to cancel the booking that too after lapse of almost 4 years caused heavy loss to the OPs. Due to present recession prevailing in the market OPs are not in a position to sell the said villa for the price that was prevailing in the year – 2006. OPs have not received any legal notice from the complainants. The complainants are not Consumers as defined U/s 2(1)(d)(ii) of the Act. The alleged legal notice dated 01.09.2009, e-mails etc., are denied as fabricated to suit the purpose of the complainants. Hence it is prayed to dismiss the complaint with exemplary costs.
4. In order to substantiate the complaint averments, the complainant filed affidavit evidence and produced documents. OP-2 filed affidavit evidence in support of the defence version.
5. Arguments on both sides heard. Points for consideration are:
Point No.1:- Whether the complainants have 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?
6. We record our findings on the above points:
Point No.1:- In Affirmative.
Point No.2:- Affirmative in part.
Point No.3:- As per final Order.
R E A S O N S
7. The complainants being the husband and wife being lured away with the advertisement and propaganda issued in daily news papers and broachers by OPs with regard to a project at Phase – II of Nirvana; booked a villa by paying an amount of Rs.5,00,000/- through cheque on 05.11.2006 to OPs. OP-1 is company and OP-2 is its Chairman. There was no any progress in the project and OPs have not intimated the complainants with regard to the steps taken for construction of villas. On verification the complainants came to know that OPs have not even purchased the land to form the layout and have not placed any documents for approval of the layout and construction of the villas. Legal notice was issued demanding for refund of the amount, OPs failed to reply for the said notice and have not complied the demand to refund the amount. Thus the complainants felt deficiency in service on the part of the OPs.
8. The complainants have produced the documents like broachers issued by OPs and the letter dated 15.11.2006 acknowledging the receipt of Rs.5,00,000/- through cheque towards booking of villa No.H-12, Phase II Nirvana. The letter dated 01.09.2009 issued by complainant No.1 to OPs reveals that the complainants have cancelled the booking of the villa and requested to refund the amount with 6% interest as per the terms and conditions. Further the letter dated 18.09.2009 by complainant No.1 to OP-2 reminded for refund of the amount with interest. It is stated that it is almost three years and the Phase II project yet to take off; the complainants do not wish to wait any more, as the project is unduly delayed. Thus the request was made to refund the amount. For the said letter OP has sent e-mail dated 29.09.2009 stating that the sincerely apologize in delay responding to the mail. Further it is stated that they shall refund the amount within 60 days along with the updating interest until such time. From this e-mail it becomes clear that OPs agreed to refund the amount with interest, but now in the version OPs deny the fact of sending that e-mail. It is difficult to accept the defence that this e-mail was not sent by OPs. There was no reason for complainants to create such an e-mail. OPs have gone to the extent of denying the receipt of legal notice got issued by the complainants. The complainants have produced the postal acknowledgements; both the OPs have received the said notice as per these acknowledgements. Inspite of receipt of legal notice OPs have not complied the demand to refund the amount and not replied for the said notice. OPs have not produced any material to show that any land has been purchased for the project and layout plan has been approved. The complainants have paid the amount on 15.11.2006; more than 4 years already elapsed; there is no any material for having acquired any land by the OPs for the formation of layout. Though in the version and affidavit evidence OPs have come up with a version that the work of construction is going on full swing in respect of villas of those who have made the payments, but no material is produced in support of the same, as such we are unable to accept that OPs have started the construction of the villas.
9. The main defence of the OPs is as per the terms and conditions; in case of cancellation of villa within 15 days of allotment; Rs.50,000/- will be considered as the cancellation amount to be deducted and the balance will be refunded only after making a new sale of the villa. Any cancellation after 15 days will entitle a cancellation fee equalant to 5% of the villa cost. Thus it is stated that OPs are entitled to deduct 5% of the villa cost out of the deposited amount and refund the balance only after making a new sale of the villa. It may be noted that no agreement deed has been executed between the parties stipulating the terms and conditions. There is no any justification on the part of the OPs to claim deduction of 5% of the total cost of the villa in the amount paid for refunding the amount. Further the defence that the complainants have not paid further amounts as per the schedule; as such these complainants are at fault who failed to make the payments and there was no lapse on the part of OPs, there is no deficiency in service. In our view when OPs have not produced any material to show that any land has been purchased for formation of the layout and approved layout has been formed and construction work of villas is in progress; the complainants cannot be expected to pay further amounts. The very fact of OPs not purchasing any land to form the layout and start the project in time or to refund the amount received amounts to deficiency in service and unfair trade practice on the part of the OPs. There is no merit in the contention that the complainants have to approach the Civil Court seeking necessary reliefs and they are not ‘Consumers’ as defined under the Act. OPs being the developers and builders collected the amount towards initial deposit for booking the villa and the said amount includes service charges for the services to be rendered by OPs in forming the layout and constructing the villa; as such it cannot be said that the complainants are not ‘Consumers’ as defined under the Act and the complaint is not maintainable. When OPs were unable to acquire any land and start the project it would have been fair enough on their part to refund the amount to the complainants. That amount has been utilized by the OPs by depriving the complainants from making use of the same to get the good returns; as such OPs are liable to pay interest on the said amount at 12% p.a. Under these circumstances we are of the view that the complainants are entitled for refund of the amount with interest at 12% p.a. and litigation cost of Rs.2,000/-. Accordingly we proceed to pass the following:
O R D E R
The complaint filed by the complainants allowed in part. OPs are directed to refund an amount of Rs.5,00,000/- with interest at 12% p.a. from 15.11.2006 till the date of realization and pay litigation cost of Rs.2,000/- to the complainants.
This order is to be complied within four weeks from the date of this order.
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 him, verified and corrected, and then pronounced in the Open Court by us on this the 5th day of February - 2011.)
PRESIDENT
MEMBER MEMBER
Snm:
