BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 25^TH DAY OF SEPTEMBER 2023

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

(a) Direct the Ops to refund the advance amount of Rs.3,00,000/- to the complainant together with interest @ 24% p.a., from the date of respect payment till the date of realization.

(b) To pay the compensation towards sustain damages by the complainant, from the act of Ops in not executing the registered sale deed, in all Rs.1,00,000/-

(c) To order to pay costs of Rs.25,000/- and pass such other orders.

2. The case set up by the complainant in brief is as under:-

The OP1 is a private limited company engaged in the development of land and formation of residential layout. The OP2 and 3 are the Managing Directors. The Ops have lured to the public and the complainant that they are forming a residential layout called New County at Ittamadu village, Bidadi Hobli, Ramanagar Taluk and District.

3. The complainant attracted and lured by the assurance and the hand bills literature in magazine and the newspaper publications advertisements and by believing the promise made by the Ops have agreed to buy site/plot No.235 measuring 1500 sq. feet for a total consideration amount of Rs.9,00,000/- which includes developmental charges and they have paid Rs.3,00,000/- as advance amount by way of transfer from Presidency Royal.  The complainant has booked a flat in Presidency Royal in plot NO.440 for Rs.3,00,000/- and paid Rs.3,00,000/- through cheque.  After formation of the present layout the complainant decided to transfer this amount vide receipt No.28 dated 09.02.2008.  The OP has executed an agreement on 11.02.2008 and agreed to execute the sale deed within three months.
4. Thereafter the complainant has approached the Ops on several times and requested them to register the sale deed as the complainant is always ready and willing to perform his part of contract. After repeated enquiry and follow up the complainant came to know that the OP does not have any piece of land in its name. All the Ops have purchased the agricultural land in Bangalore out of the amount received as advance from the complainant and other prospective purchasers. Till today the said lands are agricultural lands and the Ops have not made any efforts to get conversion of land and also approval of layout plan from the concerned authorities as assured by them. Even after lapse of 12 years the OP have not at all formed any residential layout and provided the facilities and amenities.  The complainant has also got issued notice on 14.09.2021 demanding for refund of advance amount along with interest. But the Ops have neither refunded the amount nor formed any residential layout in order to allot the sites. Hence the complainant has filed this complaint.
5. In response to the notice, OP1 and 2 remained absent and placed exparte. OP3 appeared before this Commission and filed his version.
6. The case of the OP3 is that the complaint is false, frivolous and vexatious and not maintainable. The same has been filed with an intention to harass this OP.  The OP1 is not a registered partnership firm. Hence the complaint is not maintainable. The partnership deed does not provide for individual partner to sign on behalf of the firm and there is no any authorization to OP2 to act or to sign on behalf of OP1.  Hence the alleged agreement is invalid and not binding on this OP.
7. This OP3 is not a party to the agreement and it is sham document executed by the OP2 in collusion with the complainant to make unlawful gains and claims against the firm and this OP. the said agreement is incomplete document in itself. There is no reference of plot number, survey number and no reference to the alleged conversion number and layout plan. There is no identification as to which property in respect of which alleged agreement is entered.
8. It is also the specific case of the OP3 that the complainant is not known to him.  The firm or this OP have not received any amount much less the amount referred in the complaint.  The alleged receipts claiming to have been issued by the OP2 are all false and created documents to support the above false claim.  The complaint is in the form of recovery suit. Hence it is not maintainable. The alleged claim pertains to the year 2009-10 and the present complaint is filed in the year 2021. Hence the complaint is barred by limitation and liable to be dismissed. These OP1 and 3 are not at all bound the agreement executed by the OP2. The agreement is insufficiently stamped and it referred pertains to 12 years back. The complainant and OP2 have created false agreements. Hence the complaint is not maintainable and liable to be dismissed. Therefore OP3 prayed for dismissal of the complaint.
9. The complainant has filed his affidavit evidence and relies on 05 documents.  Though sufficient time was given to the OP2, they have not filed their affidavit evidence.
10. Both the parties have not appeared and addressed their arguments nor have filed any written arguments. Hence arguments taken as heard.

11. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

12. Our answers to the above points are as under:

Point No.1:  Affirmative

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

13. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version, affidavit evidence of complainant and documents filed by the complainant. Inspite of issue of notice to OP1 and 2 have not appeared and filed their version. Hence OP1 and 2 placed exparte.
14. It is clear from the complaint and documents that the complainant attracted by the advertisements and the assurances given by the Ops has agreed to purchase a residential site No.235 measuring 1500 sq. feet @ 600/- per sq. feet in all for a total consideration of Rs.9,00,000/- situated at New Citi, Ramanagar district, which includes all developmental charges.
15. The complainant has paid an advance sale consideration amount of Rs.3,00,000/- by way of transfer from Presidency Royal.  The complainant has earlier booked the plot in Presidency Royal and after formation of this present layout he has decided to transfer the amount to this project vide receipt No.28 on 09.02.2008.  The OP2 has executed the sale agreement on 11.02.2008 and further agreed to execute the registered sale deed within three months from the date of execution of the sale agreement.  The complainant has produced the copy of the receipt for having paid Rs.3,00,000/- as Ex.P1, sale agreement as Ex.P2 and copy of legal notice and Ex.P3 and postal receipt as Ex.P4 and unserved postal cover as Ex.P5.
16. After received the advance amount of Rs.3,00,000/- from the complainant the OP have not formed any layout. After enquiry the complainant came to know that the Ops have purchased agricultural land in Bangalore out of the advance amount received from the complainant and other prospective purchasers and they have not made any efforts to get the land converted for residential purpose and also failed to get any approval of layout plan from the concerned authorities as assured by them. The complainant has waited for more than 12 years and finally he got issued legal notice on 14.09.2021. The same was returned unserved.  The OP neither formed any layout nor returned the advance amount.
17. On the other hand the contention taken by the OP3 is a total denial. The main contention taken by the OP3 is that the OP2 is one of the partner has no right to enter into any sale agreement on behalf of the firm without the consent of OP1 and OP3. The OP2 has received the amount without the knowledge of the firm and the OP3. This OP3 is not at all aware of the transaction and the complainant is not known to him. The agreement is also insufficiently stamped that very transaction is illegal and not valid.
18. It is clear from the very admission made by the OP3 that the OP1 is the firm and the OP2 and 3 are the partners. The OP2 being one of the partner has entered into the sale agreement with the complainant and received the advance amount of Rs.3,00,000/-. Whether the OP2 has entered into the transaction on behalf of the firm or on his own is not at all the issue to be decided by this commission. The OP1 to 3 being the firm and the partners are all responsible and liable for the act committed by one of the partner. This commission has no jurisdiction to entertain any internal dispute between the partners and the firm.  The OP2 inspite of service of notice remained absent and he has not at all challenged the allegations made in the complaint and the documents produced by the complainant Ex.P1 and P2 and they remained unchallenged.
19. Under these circumstances the complainant has clearly established the sale transaction entered into between himself and the OP1 to 3 firm and the advance amount received by them on behalf of the firm by giving false assurances, that they will form residential layout and sell the site by executing registered sale deed within three months from the date of execution of the sale agreement. Even though the OP have received the amount by giving false assurance to the complainant in the year 2008 itself, they have neither formed any layout nor refunded the advance amount paid by the complainant and thereby committed deficiency of service and unfair trade practice and fraud. In view of this the complainant has suffered mental agony and financial loss. If the complainant has invested the said amount in any other project in and around the Bangalore he would have got the site and he would have constructed the residential house according to his wish and will. In view of the fraud played by the Ops the complainant has lost his money and also suffered mental agony and harassment.  Hence the complainant has established the deficiency of service. Therefore we answer point No.1 in affirmative and point No.2 partly in affirmative.
20. Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OP1 to 3 are jointly and severally liable to refund the advance amount of Rs.3,00,000/- together with interest at 12% p.a., from the date of respective payment till realization.
3. The Ops are further directed to pay compensation of Rs.50,000/- with litigation expenses of Rs.10,000/- to the complainant.
4. The OPs shall comply this order within 60 days from this date, failing which the OPs shall pay interest at 15% p.a. after expiry of 60 days on Rs.3,00,000/- till final payment.
5. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 25^TH day of SEPTEMBER, 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party 3 – R.W.1;

NIL