sCOMPLAINT FILED ON: 03.01.2011
DISPOSED ON:01.08.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
DATED THIS THE 1st AUGUST – 2011
PRESENT:- SRI. B.S.REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI. A. MUNIYAPPA MEMBER
COMPLAINANT | Mr.Yogananda S/o K.P.Sriramaiah, Aged about 29 years, Residing at Sri.Raghavendra Nilaya’ S.L.Road, Kanakapura Town-562117, Ramanagara Town. Mr.J.H.Vivek S/o Hombale Gowda, Aged about 29 years, Residing at Opp.Chamundeshwari Choultry, Dharamaraja Work Shop Road, Kanakapura Town-562 117, Ramanagara Town. Advocate: M.L.Gowda and Associates, V/s. |
OPPOSITE PARTY | M/s Royal County, Presidency Group Represented by its Partner Mr.V.Bhaskar Reddy, No.895/1, ‘Skanda’, 14th Cross, Mahalakshmi Layout, Bangalore-560 086. Also at M/s Aishwarya Projects, Represented by its Partner Mr.V.Bhaskar Reddy, No.717, 2nd Floor, Poona Shashi Complex, Above Maruti Showroom, Modi Hospital Road, 2nd Stage, West of Chord Road, Bangalore-560 086. Advocate: Uday Shankar Associates. |
O R D E R S
SRI. B.S.REDDY, PRESIDENT
The complainant filed this complaint under Section 12 of the Consumer Protection Act, 1986 seeking direction against the Opposite Party (herein after called as O.P) to refund an amount of Rs.2,00,000/- with interest at 12% p.a. and to pay sum of Rs.2,04,000/- being the 1/3rd appreciation with interest at 12% p.a. compensation of Rs.50,000/- on the allegation of deficiency in service on the part of OP.
2. The case of the complainants to be stated in brief is that:
OP advertised for residential projects called “Royal County”, believing the same, the complainants paid sum of Rs.2,00,000/- through cheque on 17.03.2006 for purchase of a site measuring 1,200 sq.ft and OP issued the receipt for the same. Further, OP also executed agreement of sale incorporating the terms and conditions. OP failed to obtain any permission from the authorities to form the layout and the amount received from the complainants was used by OP without fulfilling its obligations. OP issued letter dt.19.01.2010 assuring to get approvals and sanction and process of registration would start. OP failed to form the layout and finally expressed its inability to provide site as agreed upon and issued cheque dt.28.05.2010 for Rs.2,00,000/- towards refund of the amount promising to pay 1/3rd appreciation agreed upon within 6 months. The said cheque was presented on 10.11.2010, the same was dishonoured for the reasons “Funds Insufficient”,. The legal notice was issued to the OP, Op has not replied for the same and not complied the demand. Hence, the complaint.
3. On appearance, Op filed version admitting that the complainant has paid Rs.2,00,000/- towards initial advance for the site measuring 1200 sq.ft and executed the agreement deed. It is stated that OP had informed the complainant that the previous government in order to approve the Master Plan had banned land conversion and layout development from July-2006, because of which the 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. Now the OP had applied for the conversion and approval of the layout from the concerned authorities. The said act is not intentional but for a bonafide reason and OP has not committed any deficiency of service. The project is very much on completion, the same will be completed within 6 months. OP is a partnership firm only Mr.Bhaskar Reddy has been arrayed as the party to the OP firm. The agreement deed has been executed on behalf of the firm, hence all other partner’s also necessary parties to the proceedings. The complainant is not consumer and the dispute is not consumer dispute. The complaint is barred by limitation. Hence, it is prayed to dismiss the complaint.
4. The complainants in order to substantiate complaint averments, 1st complainant filed affidavit evidence. The partner of OP firm filed affidavit in support of defence version.
5. The complainant filed written arguments. Heard from complainants’ side. Op side taken has heard.
6. Points for our consideration are:
Point No.1:- Whether the complainants proved the
deficiency in service on the part of
the OP?
Point No.2:- Whether the complainant is entitled
for the reliefs claimed?
Point No.3:- To what Order?
7. We record our findings on the above points are:
Point No.1:- Affirmative.
Point No.2:- Affirmative in part.
Point No.3:- As per final Order.
R E A S O N S
At the out set, it is not at dispute that based on the advertisement for residential projects issued by OP called “Royal County” these complainants paid an amount of Rs.2,00,000/- towards initial advance on 14.03.2008 through cheque for allotting a site in the proposed layout. OP has executed agreement deed incorporating the terms and conditions marked as Document No.2 and receipt were also received as per document No.1. OP failed to fulfill its obligation of forming the proposed layout. The letter dt.09.01.2010 was issued by OP i.e., marked as document No.3 stating that the Government has cancelled the previous Notification, they are in the process of obtaining sanctions and approval for the project and preparing to start the process of registration. Even after receipt of that letter, OP failed to form any layout. As a result, the complainants demanded for refund of the amount. OP issued cheque dt.28.05.2010 towards refund of the amount of Rs.2,00,000/- but the said cheque was dishonored as insufficient funds. The notice was issued by the complainant; OP has not replied for the same nor complied the demands.
8. The defence of the OP that because of the ban imposed by the Government land conversion and development could not take place now the Government has lifted the ban and the process of the conversion and approval of layout is in progress, the same would be completed within period of 6 months cannot be accepted. OP has not produced any materials to show that it has acquired any land and applied for conversion for proposed layout. The complainants cannot be made to wait in definitely till the project is completed. When OP was aware of the fact that it could not complete the project, it would have been fair enough on its part to refund the amount. Under these circumstances, the act of OP in not developing the project and allotting the site or refunding the amount received amounts to deficiency in service on its part. The complainant is entitled for refund of the amount with interest at 12% p.a.
9. The learned counsel for the complainant contended that in addition to refund of the amount, as per the terms and conditions of the agreement, OP has agreed to pay 1/3rd appreciation value on the booking amount under buy back scheme hence complainants are entitled for Rs.2,04,000/-being the 1/3rd appreciation agreed upon. In our view, when the project itself is not materialized and Clause-2 of the agreement provides that the purchaser should confirm his or her option of selling the plot under the buy back policy to the OP within a period of two months of booking plot and complainant has not confirmed the same as such complainant is not entitled to claim that benefit. Even that clause cannot be enforced for the reason that the project itself has not come up. Accordingly, we proceed to pass the following:
O R D E R
The complaint filed by the complainants is allowed in part.
The OP is directed to refund an amount of Rs.2,00,000/- with interest at 12% p.a. from 17.03.2008 till the date of realization and pay litigation cost of RS.2,000/- to the complainant within 4 weeks from the date of this Order.
Send copy of this order to both the parties free of costs.
(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 1st day of August – 2011.)
MEMBER MEMBER PRESIDENT
