M/S. New Country . V/S Mr.Bhanuprasad.S. - Consumer Court Case

Karnataka

Bangalore Urban

cc/09/2946

Mr.Bhanuprasad.S. - Complainant(s)

Versus

M/S. New Country . - Opp.Party(s)

18 Dec 2009

ORDER

BANGALORE URBAN DISTRICT CONSUMER DISPUTES REDRESSLAL FORUM, BANGALORE, KARNATAKA STATE.
Bangalore Urban District Consumer Disputes Redressal Forum, Cauvery Bhavan, 8th Floor, BWSSB Bldg., K. G. Rd., Bangalore-09.
consumer case(CC) No. cc/09/2946

Mr.Bhanuprasad.S. Mr . Nagaraja. M.						...........Appellant(s)
Vs.
Altarnetivi at. M/S. New Country .						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

COMPLAINTS FILED ON: 14.12.2009 DISPOSED ON: 29.07.2010 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 29TH JULY 2010 PRESENT:- SRI. B.S.REDDY PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI.A.MUNIYAPPA MEMBER COMPLAINT NOs.2945 & 2964/2009 COMPLAINT NO.2945/09 COMPLAINANTS 1. Mr. C.R. Sudarshana, S/o Late C.G.Ramachandrachar, R/at No.197/A, 1st Main, 4th Cross, 3rd Phase, Manjunathanagar, Bangalore 560 010. 2. Mr. R.S. Suresh, S/o Late R.G. Shankara, R/at No.6, VINI, 1st Floor, RIHS Layout, 15th Main, J.C. Nagar, Mahalakshmipuram, Bangalore 560 086. COMPLAINT NO.2946/09 COMPLAINANTS OPPOSITE PARTY 1. Mr. Bhanuprasad. S., S/o Mr. Shamanna B.K., 2. Mr. Nagaraj M., S/o Mr. B.M. Rao, Both are Residing at No.1115, 8th A Main, 3rd Stage, 3rd Block, Basaveshwara Nagar, Bangalore 560 079. Advocate: Sri W.T.PrakashKumar V/s. M/s New County, No.895/1, Skanda, 14th Cross, Mahalakshmi Layout, Bangalore 560 086. Rep: by its Partner Mr. V. Bhaskar Reddy. Alternatively At: Mr. V. Bhaskar Reddy, Aishwarya Projects Township Promoters, No.717, 2nd Floor, Poornashashi Complex, Modi Hospital Road, II Stage, West of Chord Road, Basaveshwaranagar, Bangalore 560 086. Advocate: Sri C.P. Dhananjaya O R D E R S SRI. B.S.REDDY, PRESIDENT The complainants in both these complaints filed U/s. 12 of the Consumer Protection Act of 1986, are seeking direction against the Opposite Party (herein after called as O.P) to refund the amounts paid towards membership fees, registration charges with interest at 18% p.a. and also for suitable damages on an allegation of deficiency in service on the part of the OP. OP is common in both these complaints, the facts and questions involved for consideration are common. In order to avoid repetition of reasonings and duplication of facts; both these complaints stand disposed of by this common order. 2. The case of the complainants to be stated in brief is that: The complainants believing the assurance made by Marketing Manager of OP decided to purchase the plots formed in New County layout situated at Ittamadu Village, Bidadi Hobli, Ramanagara Taluk, Bangalore Rural District and paid advance sale consideration obtained agreement deeds. On 18.01.2008 the agreement deeds contains the clause to buy back the plots with appreciation of 1/3rd value on the booking amount. The complainants in complaint No.2945/09 paid advance sale consideration of Rs.2,85,200/- and the complainants in complaint No.2946/09 paid advance sale consideration of Rs.3,12,500/-. The complainants decided to exercise the buy back option. Accordingly they issued letters requesting the OP to refund the advance sale consideration with appreciation of 1/3rd value of booking amount as per clause 2 of the agreement. OP in the reply assured to refund the principle amount and the benefit assured as per the agreement. The complainants approached OP several times in the month of July 2009 and subsequent months, but OP avoided by giving evasive replies. OP is not at all interested in developing the subject plots and has also not offered to buy back the same and refund the amount with assured benefits as agreed upon. The complainant got issued legal notice, OP has sent untenable reply for the same offering alternative sites at another layout or to accord some more time for refunding the amount. Thus the complainants felt deficiency in service on the part of the OP and filed these complaints seeking the necessary reliefs as stated above. The complainants in complaint No.2945/09 claimed total amount of Rs.4,93,641/- and the complainants in complaint No.2946/09 claimed total amount of Rs.5,36,110/-. 3. On appearance, OP filed version admitting the receipt of advance sale consideration and execution of the agreement deeds in favour of the complainants. It is contended that the project was incomplete because of not getting the conversion order from the concerned authority. BMRDA in order to approve the master plan for Magadi, Nelamangala, Kanakapura, Hoskote, Anekal, Bidadi and Ramanagara Chennapatna banned land conversion and layout development from July 2007 because of which OP was not able to get any conversion or any plan approved from the concerned authority. It is denied that OP assured to refund the amount with the appreciation of 1/3rd value as agreed upon. It is contended that OP is prepared to allot alternative sites formed in the layout M/s Royal County or M/s Royal Archids. If the complainants are not interested in the alternative sites, OP is ready to refund the booking amount. Hence it is prayed to dismiss the complaints. 4. The complainants and OP filed affidavit evidence and produced documents in support of complaint averments and defence version. 5. Arguments on complainants side heard, the arguments on OP side taken as heard. Points for consideration are: Point No.1:- Whether the complainant proved the deficiency in service on the part of the OP? Point No.2:- Whether the complainant is entitled for the reliefs now claimed? Point No.3:- To what Order? 6. We have gone through the pleadings of the both the parties, affidavit evidence and documents produced. We record our findings on the above points are under: Point No.1:- Affirmative. Point No.2:- Affirmative in part. Point No.3:- As per final Order. R E A S O N S 7. At the out set it is not at dispute that the OP has executed the agreement deeds dated 18.01.2008 in favour of the complainants for having agreed to sell the sites stated to have been formed at New County. The agreement deeds contains the buy back clause wherein OP has agreed to buy back the plots with an appreciation of 1/3rd value of the booking amount, after six months from the date of the receipt of the amount paid at the time of booking of plots. OP has executed the receipts for having received the advance sale consideration as shown in the agreement deeds. The complainants have produced the reply letter of OP dated 04.03.2009 wherein OP has acknowledged the receipt of request letter for the refund of the amount paid under the buy back scheme and assured to pay the principle amount and benefit assured on 15.07.2009. Inspite of such an undertaking given; OP has not refunded the amount. For the legal notice got issued by these complainants, OP has sent reply admitting the receipt of advance sale consideration, but offered alternative sites in other layouts. The complainants are not prepared to accept the alternative sites offered. OP was unable to complete the project on account of ban imposed by the Government for conversion of the lands and sanction of approved layout. It appears even when there was a ban for conversion; OP has received the advance sale consideration from these complainants and has undertaken to buy back the plots after six months with appreciation of 1/3rd amount on the booking amount. Though in the version OP has denied the fact of he having agreed to pay the assured 1/3rd on the booking amount, but the reply letters dated 04.03.2009 clearly goes to show that OP has accepted the liability to refund the principle amount with the benefit assured. The complainants cannot be compelled to take the alternative sites stated to have been formed in other layouts M/s Royal Archids or M/s Royal County. When OP was unable to form the layout and full fill its obligation to complete the transactions, it would have been fair on its part to refund the amount. Inspite of undertaking given to refund the amount with assured benefit on or before 15.07.2009 OP failed to keep up its promise. Failure on the part of the OP in full filling its obligation of registering the sites or refunding the amount, amounts to deficiency in service on its part. On the basis of the affidavit evidence of the complainants and documents produced; we are of the view that the complainants proved deficiency in service on the part of the OP. 8. In complaint No.2945/09 the complainants claimed the amount as under: (i) Money paid to the OP by the complainants..Rs.2,85,200=00 (ii) Assured benefit: (i.e. 1/3rd value on the booking amount) Rs. 95,066=00 (iii) Interest at the rate of 12% p.a. on the total amount of Rs.3,80,266/- from 19.07.2008 to the date of filing this complaint Rs. 63,375=00 (iv) Damages for mental agony and cost of this proceeding) .. Rs. 50,000=00 --------------------------- Total Rs.4,93,641=00 --------------------------- In complaint No.2946/09 the complainants claimed the amount as under: (i) Money paid to the OP by the complainants..Rs.3,12,500=00 (ii) Assured benefit: (i.e. 1/3rd value on the booking amount) Rs.1,04,166=00 (iii) Interest at the rate of 12% p.a. on the total amount of Rs.4,16,666/- from 19.07.2008 to the date of filing this complaint Rs. 69,444=00 (iv) Damages for mental agony and cost of this proceeding) .. Rs. 50,000=00 --------------------------- Total Rs.5,36,110=00 --------------------------- Since the complainants have already claimed 1/3rd value on the booking amount and OP has also agreed to pay the same as per the reply letter, interest claimed at the rate of Rs.12% p.a. appears to be on higher side. When the assured benefit i.e., 1/3rd value on the booking amount is already claimed; the same is to be taken as damages or compensation, as such the complainants are not entitled to claim damages. Taking into consideration of all the facts and circumstances we are of the considered view that the complainants are entitled for the refund of the advance sale consideration with assured benefit i.e., 1/3rd value on the booking amount with interest at 9% p.a. from 19.07.2008 till the date of realization. Accordingly we proceed to pass the following: O R D E R Both the complaints are allowed in part. 1. In complaint No.2945/09 OP is directed to pay an amount of Rs.3,80,266/- with interest at 9% p.a. from 19.07.2008 till the date of realization with litigation cost of Rs.2,000/- to the complainants. 2. In complaint No.2946/09 OP is directed to pay an amount of Rs.4,16,666/- with interest at 9% p.a. from 19.07.2008 till the date of realization with 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 copy of this order to both the parties free of costs. This original order shall be kept in the file of the complaint No.2945/2009 and a copy of it shall be placed in complaint No.2946/2009. (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 29th day of July 2010.) PRESIDENT MEMBER MEMBER Snm:

COMPLAINTS FILED ON: 14.12.2009 DISPOSED ON: 29.07.2010 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 29TH JULY 2010 PRESENT:- SRI. B.S.REDDY PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI.A.MUNIYAPPA MEMBER COMPLAINT NOs.2945 & 2964/2009 COMPLAINT NO.2945/09 COMPLAINANTS 1. Mr. C.R. Sudarshana, S/o Late C.G.Ramachandrachar, R/at No.197/A, 1st Main, 4th Cross, 3rd Phase, Manjunathanagar, Bangalore 560 010. 2. Mr. R.S. Suresh, S/o Late R.G. Shankara, R/at No.6, VINI, 1st Floor, RIHS Layout, 15th Main, J.C. Nagar, Mahalakshmipuram, Bangalore 560 086. COMPLAINT NO.2946/09 COMPLAINANTS OPPOSITE PARTY 1. Mr. Bhanuprasad. S., S/o Mr. Shamanna B.K., 2. Mr. Nagaraj M., S/o Mr. B.M. Rao, Both are Residing at No.1115, 8th A Main, 3rd Stage, 3rd Block, Basaveshwara Nagar, Bangalore 560 079. Advocate: Sri W.T.PrakashKumar V/s. M/s New County, No.895/1, Skanda, 14th Cross, Mahalakshmi Layout, Bangalore 560 086. Rep: by its Partner Mr. V. Bhaskar Reddy. Alternatively At: Mr. V. Bhaskar Reddy, Aishwarya Projects Township Promoters, No.717, 2nd Floor, Poornashashi Complex, Modi Hospital Road, II Stage, West of Chord Road, Basaveshwaranagar, Bangalore 560 086. Advocate: Sri C.P. Dhananjaya O R D E R S SRI. B.S.REDDY, PRESIDENT The complainants in both these complaints filed U/s. 12 of the Consumer Protection Act of 1986, are seeking direction against the Opposite Party (herein after called as O.P) to refund the amounts paid towards membership fees, registration charges with interest at 18% p.a. and also for suitable damages on an allegation of deficiency in service on the part of the OP. OP is common in both these complaints, the facts and questions involved for consideration are common. In order to avoid repetition of reasonings and duplication of facts; both these complaints stand disposed of by this common order. 2. The case of the complainants to be stated in brief is that: The complainants believing the assurance made by Marketing Manager of OP decided to purchase the plots formed in New County layout situated at Ittamadu Village, Bidadi Hobli, Ramanagara Taluk, Bangalore Rural District and paid advance sale consideration obtained agreement deeds. On 18.01.2008 the agreement deeds contains the clause to buy back the plots with appreciation of 1/3rd value on the booking amount. The complainants in complaint No.2945/09 paid advance sale consideration of Rs.2,85,200/- and the complainants in complaint No.2946/09 paid advance sale consideration of Rs.3,12,500/-. The complainants decided to exercise the buy back option. Accordingly they issued letters requesting the OP to refund the advance sale consideration with appreciation of 1/3rd value of booking amount as per clause 2 of the agreement. OP in the reply assured to refund the principle amount and the benefit assured as per the agreement. The complainants approached OP several times in the month of July 2009 and subsequent months, but OP avoided by giving evasive replies. OP is not at all interested in developing the subject plots and has also not offered to buy back the same and refund the amount with assured benefits as agreed upon. The complainant got issued legal notice, OP has sent untenable reply for the same offering alternative sites at another layout or to accord some more time for refunding the amount. Thus the complainants felt deficiency in service on the part of the OP and filed these complaints seeking the necessary reliefs as stated above. The complainants in complaint No.2945/09 claimed total amount of Rs.4,93,641/- and the complainants in complaint No.2946/09 claimed total amount of Rs.5,36,110/-. 3. On appearance, OP filed version admitting the receipt of advance sale consideration and execution of the agreement deeds in favour of the complainants. It is contended that the project was incomplete because of not getting the conversion order from the concerned authority. BMRDA in order to approve the master plan for Magadi, Nelamangala, Kanakapura, Hoskote, Anekal, Bidadi and Ramanagara Chennapatna banned land conversion and layout development from July 2007 because of which OP was not able to get any conversion or any plan approved from the concerned authority. It is denied that OP assured to refund the amount with the appreciation of 1/3rd value as agreed upon. It is contended that OP is prepared to allot alternative sites formed in the layout M/s Royal County or M/s Royal Archids. If the complainants are not interested in the alternative sites, OP is ready to refund the booking amount. Hence it is prayed to dismiss the complaints. 4. The complainants and OP filed affidavit evidence and produced documents in support of complaint averments and defence version. 5. Arguments on complainants side heard, the arguments on OP side taken as heard. Points for consideration are: Point No.1:- Whether the complainant proved the deficiency in service on the part of the OP? Point No.2:- Whether the complainant is entitled for the reliefs now claimed? Point No.3:- To what Order? 6. We have gone through the pleadings of the both the parties, affidavit evidence and documents produced. We record our findings on the above points are under: Point No.1:- Affirmative. Point No.2:- Affirmative in part. Point No.3:- As per final Order. R E A S O N S 7. At the out set it is not at dispute that the OP has executed the agreement deeds dated 18.01.2008 in favour of the complainants for having agreed to sell the sites stated to have been formed at New County. The agreement deeds contains the buy back clause wherein OP has agreed to buy back the plots with an appreciation of 1/3rd value of the booking amount, after six months from the date of the receipt of the amount paid at the time of booking of plots. OP has executed the receipts for having received the advance sale consideration as shown in the agreement deeds. The complainants have produced the reply letter of OP dated 04.03.2009 wherein OP has acknowledged the receipt of request letter for the refund of the amount paid under the buy back scheme and assured to pay the principle amount and benefit assured on 15.07.2009. Inspite of such an undertaking given; OP has not refunded the amount. For the legal notice got issued by these complainants, OP has sent reply admitting the receipt of advance sale consideration, but offered alternative sites in other layouts. The complainants are not prepared to accept the alternative sites offered. OP was unable to complete the project on account of ban imposed by the Government for conversion of the lands and sanction of approved layout. It appears even when there was a ban for conversion; OP has received the advance sale consideration from these complainants and has undertaken to buy back the plots after six months with appreciation of 1/3rd amount on the booking amount. Though in the version OP has denied the fact of he having agreed to pay the assured 1/3rd on the booking amount, but the reply letters dated 04.03.2009 clearly goes to show that OP has accepted the liability to refund the principle amount with the benefit assured. The complainants cannot be compelled to take the alternative sites stated to have been formed in other layouts M/s Royal Archids or M/s Royal County. When OP was unable to form the layout and full fill its obligation to complete the transactions, it would have been fair on its part to refund the amount. Inspite of undertaking given to refund the amount with assured benefit on or before 15.07.2009 OP failed to keep up its promise. Failure on the part of the OP in full filling its obligation of registering the sites or refunding the amount, amounts to deficiency in service on its part. On the basis of the affidavit evidence of the complainants and documents produced; we are of the view that the complainants proved deficiency in service on the part of the OP. 8. In complaint No.2945/09 the complainants claimed the amount as under: (i) Money paid to the OP by the complainants..Rs.2,85,200=00 (ii) Assured benefit: (i.e. 1/3rd value on the booking amount) Rs. 95,066=00 (iii) Interest at the rate of 12% p.a. on the total amount of Rs.3,80,266/- from 19.07.2008 to the date of filing this complaint Rs. 63,375=00 (iv) Damages for mental agony and cost of this proceeding) .. Rs. 50,000=00 --------------------------- Total Rs.4,93,641=00 --------------------------- In complaint No.2946/09 the complainants claimed the amount as under: (i) Money paid to the OP by the complainants..Rs.3,12,500=00 (ii) Assured benefit: (i.e. 1/3rd value on the booking amount) Rs.1,04,166=00 (iii) Interest at the rate of 12% p.a. on the total amount of Rs.4,16,666/- from 19.07.2008 to the date of filing this complaint Rs. 69,444=00 (iv) Damages for mental agony and cost of this proceeding) .. Rs. 50,000=00 --------------------------- Total Rs.5,36,110=00 --------------------------- Since the complainants have already claimed 1/3rd value on the booking amount and OP has also agreed to pay the same as per the reply letter, interest claimed at the rate of Rs.12% p.a. appears to be on higher side. When the assured benefit i.e., 1/3rd value on the booking amount is already claimed; the same is to be taken as damages or compensation, as such the complainants are not entitled to claim damages. Taking into consideration of all the facts and circumstances we are of the considered view that the complainants are entitled for the refund of the advance sale consideration with assured benefit i.e., 1/3rd value on the booking amount with interest at 9% p.a. from 19.07.2008 till the date of realization. Accordingly we proceed to pass the following: O R D E R Both the complaints are allowed in part. 1. In complaint No.2945/09 OP is directed to pay an amount of Rs.3,80,266/- with interest at 9% p.a. from 19.07.2008 till the date of realization with litigation cost of Rs.2,000/- to the complainants. 2. In complaint No.2946/09 OP is directed to pay an amount of Rs.4,16,666/- with interest at 9% p.a. from 19.07.2008 till the date of realization with 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 copy of this order to both the parties free of costs. This original order shall be kept in the file of the complaint No.2945/2009 and a copy of it shall be placed in complaint No.2946/2009. (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 29th day of July 2010.) PRESIDENT MEMBER MEMBER Snm: