COMPLAINT FILED ON:18.01.2011

DISPOSED ON:29.11.2011.

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

29^th DAY OF NOVEMBER-2011

       PRESENT:- SRI. B.S.REDDY                PRESIDENT                        

                         SMT. M. YASHODHAMMA         MEMBER    

                         SRI.A.MUNIYAPPA                   MEMBER

O R D E R

SRI. B.S.REDDY, PRESIDENT

The complainant filed this complaint u/s. 12 of the C.P. Act of 1986 seeking direction against the Opposite Parties (herein after called as OPs) to refund an amount of Rs.4,32,000/- with interest at 12% p.a. from 17.08.2009 and to pay compensation of Rs.15,000/- along with costs of the proceedings on the allegation of deficiency in service on the part of the OP.

2. The case of the complainant to be stated in brief is that:-

       In pursuance of advertisement and propaganda made by OP being a Partnership Firm engaged in forming layout called as “Presidency Elite” situated at Doddamarahalli, Yelluvahally, Varamallenahalli, Nandi Hobli, Chickballapura Taluk, Kolar District the complainant entered into an agreement of sale to purchase plot bearing No.350 and paid advance sale consideration of Rs.4,32,000/-, OP has executed agreement deed acknowledging the receipt of the same. As per the terms of the agreement complainant had opted for buyback Scheme and accordingly sought for refund of the amount of Rs.4,32,000/-, OP notified the complainant on 30.03.2009 that it would repay the principal amount of Rs.4,32,000/- along with the accrued benefit on or before 17.08.2009, as per the letter dt.30.03.2009. Since January 2010, the complainant has tried to approach the OP on several times for the purpose of getting her entitlement which OP is legally bound to pay. The complainant got issued legal notice dt.03.01.2011 calling upon the OP to settle the dues, the notice returned un-served. Hence the complaint.

3.   On appearance OPs filed version contending that the complaint is not a ‘Consumer, the dispute is not a ‘Consumer’ dispute, the complaint is barred by limitation. It is admitted that the complainant has paid Rs.4,32,000/- towards sale advance consideration in respect of plot No.350 proposed to be formed at ‘Presidency Elite’ Project. It is stated that the State Government banned land conversion and layout development from July-2006 because of which OP was not able to get any conversion or any plan from the concerned authority. The land lock was only for one year but it was extended from time to time and now the said land lock was unlocked by the government by approving the Master Plan. OP now had applied for the conversion and approval of the layout from the concerned authorities. The process of completion of the project is very much on and it shall be completed within a period of six months. On completion of the project OP is prepared to fulfill its obligations allotting the sites. The other partners of OP are not made parties to the proceedings, hence complaint is bad for non-joinder of necessary parties. There is no deficiency of service on the part of the Ops. Hence it is prayed for dismissal the complaint.

4.   In order to substantiate the complaint averments complainant filed affidavit evidence and produced documents. The Managing Partner of the OP filed affidavit evidence in support of defence version.

5.   Arguments heard from complainant’s side. OP side taken has heard.

6.   In view of the above said facts the points now that arise for our consideration in this complaint are as under:

Point No.1:-Whether the complainant has proved the deficiency in service on the part of the OP?

           Point No.2:-If so, whether the complainant is  

                             entitled for the relief’s now claimed?

           Point No.3:-To What order?

7.   We record our findings on the above points:

    Point No.1:-Affirmataive

            Point No.2:-Affirmative in part

           Point No.3:-As per final order.

R E A S O N S

8. The undisputed facts are that OP being a developer of the layouts proposed to form “Presidency Elite” layout at Doddamarahalli, Yaramallenahalli, Nandi Hobli, Chickballapura Taluk, Kolar District and the complainant entered into an agreement of sale with OP to purchase plot No.350 and paid advance sale consideration of Rs.4,32,000/-. OP executed agreement deed dt.20.03.2008 stipulating the terms and conditions. OP was unable to form the layout as the Government banned land Conversion and layout development from July-2006. Now the land lock has been unlocked by the Government by approving the Master Plan. OP has come forward to allot the site and register the same as he had applied for conversion and approval of the layout. The complainant is claiming benefit of buyback Scheme stipulated under the agreement deed. He has sought for refund of the amount of Rs.4,32,000/-. OP in its reply letter dt.30.03.2009 has admitted the fact of receipt of request letter from the complainant for the refund of the amount paid and OP assured to refund the principle amount and benefit accrued under the buyback Scheme within 17.08.2009. OP has not complied with the said undertaking by refunding the amount as such the complainant got issued legal notice dt.03.01.2011. OP has not replied for the same nor complied with the demand. The act of OP in not complying the demand for refund of the amount amounts to deficiency in service on the part of the OP.

9.There is no merit in the contention that the complaint is not a ‘Consumer’ and the complaint is barred by limitation and the complaint is bad for non-joinder of other partners as necessary parties. The Managing Partner has executed the agreement deed representing the OP firm, the other partners are not necessary parties. When once OP has accepted the initial consideration for allotting the site, till the site is allotted or the amount is refunded, the cause of action continuous to accrue. Even otherwise the agreement deed has been executed on 20.03.2008 and the letter of undertaking to refund the amount on 30.03.2009, in view of the same the complaint filed on 18.01.2011 is within the period of 2 years, as such it cannot be said that the complaint is barred by limitation.

10.The complainant has claimed interest at 12% p.a. from the date of agreement deed and compensation of Rs.50,000/-. As per Clause-2 of the agreement the complainant was given option of buyback Scheme wherein it was assured that after six months, OP would buyback the plot with appreciation of 1/3^rd Value booking amount. Taking into consideration of all the facts and circumstances, we are of the view that the complainant is entitled for refund of the amount with interest at 18% p.a. by way of compensation along with litigation cost of Rs.2,000/-. Accordingly we proceed to pass the following:

O R D E R

The complaint filed by the complainant is allowed in part.

OPs are directed to refund an amount of Rs.4,32,000/- with interest at 18% p.a. from 20.03.2008 till the date of realization and pay litigation cost of Rs2,000/- to the complainant.

This order is to be complied within four weeks from the date of its communication.

Send copy of this order to both the parties free of costs.

        (Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Court by us on this the 29^th day of November-2011.)

MEMBER                            MEMBER                          PRESIDENT

Cs.