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

DATED 29^TH DAY OF NOVEMBER 2022

ORDER

SMT.M.SHOBHA, PRESIDENT

1. This  complaint has been filed for the  following reliefs

1. To Direct the respondent/OP to refund the advance amount of Rs.3,10,000/- with interest at the rate of 18%.
2. To direct the respondent/OP to compensate the complainant as per sale agreement dt.26.06.2012 (para- NO.17 in case of land has not been approved by District Town and Country planning(DTCP) initial sale consideration will be refunded with interest as per existing bank rate of interest).
3. To direct the respondent to pay damages of R.50,000/- in lieu of the promised/assurance of development of layout/project within a stipulated time vide agreement dt.26.03.2012.
4. To direct the respondent to pay Rs.50,000/- to the complainant towards damages, mental agony, expenses for deficiency in the delivery of service.
5.  And to pass   such other reliefs as may be deemed fit, in the interest of justice and equity.

2. The case of the complainant is that:

The OP is a partnership firm which is engaged in the business of  developing layouts/projects for residential purposes and having  their office  address mentioned in the cause title and having named their layout as “ORCHID PARADIDSE”. The complainant has entered into sale agreement with the OP agreeing to purchase the plot bearing no.648 in the layout called as “Orchid Paradise” measuring  1200 Sq.ft at the rate of Rs.425/- per sq.ft. for a total sale consideration of Rs.5,10,000/-, which is inclusive of  water, electricity and road with street light. The complainant has paid amount of Rs.10,000/- at the time of sale agreement and further sum of Rs.1,50,000/- by way of cash on 26.03.2012 and again Rs.1,50,000/-  by way of cash on 07.05.2015. The OP imposed condition at the time of execution of sale agreement that the purchaser shall pay balance sale consideration of Rs.2,00,000/-  within one month from the date of got approval  by the DTCP.

It is further grievance of the complainant that the OP have not at all developed the layout and not executed  absolute sale deed in respect of repeated requests made by the complainant. The OP even after receiving substantial amount towards sale consideration amount  have not developed the project and they made the complainant to wait for developing  and approval of the project/plot  till the date. The complainant has  paid Rs.3,10,000/- against Rs.5,10,000/-.

It is further grievance of the complainant that he approached the OP several times  as agreed in the agreement of sale, but the OP have one or the another pretexts and by giving false assurances  postponing the project. When the OP had failed to keep up the promises/obligations in completing the project within a stipulated period, the complainant has approached him and sought for refund of the amount. Inspite of the requests made by the complainant the OP has not refunded the amount and  failed to complete the project  as early  as possible.  At last, the complainant has sent legal notice on 13.02.2020 to the OP, same was served. Even after receipt of the notice, the OP has not complied requests of the complainant  nor paid any amount paid by the complainant. The OP there by has committed deficiency of service towards completion of the project within a stipulated period and without registering the plot in favour of the complainant due to his negligence. Hence, the complainant filed this complaint.

3. After issue of notice, OP has appeared through his counsel and filed version, denied all the allegations made  in the complaint and further denied  that they have not completed project within a statutory period as per agreement dt.26.03.2012.

4. It is specific contention by the OP that as per agreement dt.26.03.2012 the complainant does not adhere to the terms as specified in the agreement and  the complainant has executed the sale  agreement  dt.26.03.2012 and the complainant has not turned up to get the sale deed even though the complainant having the knowledge of the terms of agreement.  Now the complainant has approached this Forum.

5. It is main contention taken by the OP that there is an  inordinate  delay in filing the complaint and the complainant has approached this commission after lapse of 9 years and he is not entitled for any  reliefs.

6. It is the case of the OP that there is no deficiency of service on his part in providing service to the complainant. The complainant has falsely alleged in the complaint that the OP has not completed the project and has not handed over the possession. This OP has obtained necessary approval on 17.03.2013 itself and he has informed the complainant get sale deed registered in their favour, but the complainant has not turned up to get the sale deed registered in their favour. After prior approval 90% of the project was completed by the OP. Then OP called upon the complainant many times, but the complainant has never turned up. The complainant without approaching this OP to get sale deed registered, has filed false complaint  by making  baseless allegations.  This OP even get ready to sale deed registered in favour of the complainant in phase-III  of the same project subject to payment of balance amount  as per prevailing rates. Hence,  prays for dismissal of the complaint.

7. Both the complainant and OP have not adduced oral and documentary evidence. They have not submitted  arguments. Hence, the case is posted for orders.

8. After perusing the documents available in the file the following points do arise for our consideration:-

1. Whether the complainant has proved the  deficiency in service on the part of the OP?
2. Whether the complainant is entitled for the reliefs claimed in the complaint ?
3. What order?

9. Our answer to the above points are as under:

       Point No.1:- Negative

      Point no.2:- Negative

      Point No.3:-As per the final order.

REASONS

10. Point No.1 and 2: The complainant has filed this complaint seeking for refund of the advance amount paid by him to the OP and also for compensation and for damages and for legal expenses etc., on the ground that he has entered into sale agreement with the OP after paying advance amount of Rs.3,10,000/-. Even though OP executed sale agreement on 26.03.2012, the OP has not developed the layout and he has not handed over the site. There is inordinate delay in forming the layout. Hence, he has filed this complaint for relief of refund of the advance amount paid by him.

11. On the other hand the OP has taken the contention that even though, the project has completed and the OP was ready  to hand over the site by executing registered sale deed in favour of the complainant. The complainant has not turned up and he has not approached the OP to get the registered sale deed executed in his favour.

12. It is pertinent to note hear that during the pendency of the complainant,  the OP has filed registered sale deed executed in favour of the complainant by the M/s Creative Transcity Developers  in respect of site no.1/89 formed in sy.no.33,45, 46 as per DTCP approved plan measuring 1200 sq.mts. situated at Japthihosahalli village, Kasaba hobli, Shidlaghatta Tq., Chikkaballapur Dist.

13. The OP has also requested this commission to dismiss the complaint as the complainant has obtained registered sale deed in respect of the site claimed by him from the OP.

14. Inpite of given sufficient time the complainant to confirm whether the sale deed placed before this commission by the OP related to his property and whether he has paid amount claimed by him in this complaint related to this property.  The complainant  neither confirmed the sale deed nor denied it. After comparison  of office address of the OP in agreement of sale produced by the complainant and address of the OP mentioned in the sale deed are one and the same. When the complainant has not at all denied the sale deed executed by one of the person of the OP, there is no other option for this commission except to rely on the absolute  registered sale deed placed before this commission by the OP. When the complainant has got the  registered sale deed in his favour in respect of  sites formed by  the OP,  the question of  refund of the advance amount paid by the complainant do not arise. Under these circumstances, the complaint filed by the complainant is not at all maintainable and liable to be dismissed. Therefore, we answer the Poin-1 and 2 in the negative.

15. Point no.3:-.   Accordingly, we proceed to pass the following 

O R D E R

1. The complaint is dismissed without cost.
2. Furnish the copy of this order to both the parties, and return the spare pleadings and documents to the parties.

• Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 29^th  day of November, 2022)

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

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