COMPLAINT FILED:25.11.2010

DISPOSED ON:29.09.2011

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

29^th DAY OF SEPTEMBER-2011

  PRESENT :-  SRI. B.S. REDDY                          PRESIDENT

                     SMT. M. YASHODHAMMA                 MEMBER                   

                     SRI. A. MUNIYAPPA                         MEMBER

       COMPLAINT NO.2644/2010

O R D E R

Sri.B.S.REDDY,PRESIDENT

The complainant filed this complaint Under Section 12 of the Consumer Protection Act of 1986 seeking directions against the opposite party (herein after refer to as OP) to refund an amount of Rs.2,20,000/- and 1/3^rd of advance amount payable under buy back policy of Rs.73,000/, interest at 18% p.a. Rs.1,84,590/- with cost of litigation on the allegation of deficiency in service on the part of the OP.

2. The brief averments made in the complaint are as follows:

   OP entered into an agreement dt.23.05.2007 with complainant for sale of Plot No.476 in layout called as ‘Royal Enclave’ at Maratikyatanahalli Village, Jayapura Hobli, Mysore Taluk, Mysore District, measuring 1200 Sq. Ft., and received an amount of Rs.2,20,000/- as advance sale consideration and executed the agreement deed. As per Clause-2 of the agreement, the complainant was given the option of going for owning the said plot by opting for getting the same registered in her name or selling the same back to the OP. OP could not form the layout even after 2 years from the said agreement. The complainant wrote a letter dt.25.07.2009 to OP informing that she is intending to sell the plot under Buy-back policy and asked the OP to return the advance amount paid plus the 1/3^rd of the advance amount paid as appreciation payable under buy-back policy. OP neither paid back the amount nor formed the layout. The complainant got issued legal notice dt.04.03.2010 and called upon the OP to pay advance amount of RS.2,20,000/- along with 1/3^rd of the said amount as buy-back benefit with interest at 18% p.a. OP replied for the said notice admitting the agreement and payment of Rs.2,20,000/-, explaining its difficulty in getting the conversion. In spite of requests, OP has neither refunded the amount nor formed the layout hence the complainant felt deficiency in service on the part of the OP and was advised to file this complaint.

3. On appearance OP filed version contending that the delay in completion of the project is not intentional, it is only due to restriction laid by the Government. 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. OP had applied for the conversion and approval of the layout from the concerned authorities. The process of the completion of the project is very much on and it shall be completed within a period of six months. The complaint is bad for non-joinder of necessary parties i.e., other partners of the OP firm. The complainant is not a consumer as defined Under Section 2(1)(d) of the Consumer Protection Act 1986. The complaint is barred by limitation. OP admitted the fact of execution of the agreement deed and receipt of an amount of Rs.2,20,000/- from the complainant in respect of site bearing No.476. It is stated that there is no deficiency in service on the part of the OP. Hence it is prayed to dismiss the complaint.

4.   In order to substantiate the complaint averments, the complainant filed affidavit evidence. The partner of the OP firm field affidavit evidence in support of the defence version. The complainant filed written arguments.

5.   Arguments on both sides heard.

6.   In view of the above said facts, the points now that arises 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 claimed?

       Point No.3:-  To what Order?

7.We record our findings on the above points:

Point No.1:- In Affirmative.

Point No.2:- Affirmative in part.

Point No.3:- As per final Order.

R E A S O N S

At the outset it is not in dispute that OP being a developer entered into an agreement of sale in respect of plot bearing No.476 measuring 1200 Sq.Ft formed in the proposed layout ‘Royal Enclave’ at Maratikyatanahalli Village, Jayapura Hobli, Mysore Taluk, Mysore District, for a total consideration of Rs.6,60,000/- and received initial advance of Rs.2,20,000/- from the complainant executed the agreement deed on 23.05.2007. In the agreement deed it is mentioned that the complainant paid an amount of Rs.50,000/- on 14.04.2007 and an amount of Rs.1,70,000/- on 17.05.2007 in all Rs.2,20,000/-. The agreement deed also provides that the complainant shall pay the balance amount of Rs.4,40,000/- within a month from the date of approval Clause-2 of the agreement provides option of getting the plot registered or to sell under buy back scheme to the seller. The seller undertakes to buy back the plot with an appreciation of 1/3^rd value on the booking amount after 6 months from the date of the receipt of the amount paid at the time of booking of plot. The purchaser to confirm option of getting the plot registered or selling the plot under the buy back policy to the seller in writing within a period of two months from the date of booking of the plot failing which the seller will be entitled to buy back the plot without giving any further notice to the purchaser.

8.   The complainant has not issued any notice within 2 months from the date of booking of the plot either to get the sale deed registered or selling the plot under buy back scheme to the OP. In view of the same, the complainant is not entitled to claim appreciation of 1/3^rd value on the booking amount.

9.   OP has not fulfilled its obligation of developing the layout and forming the sites with all amenities. OP has not acquired any land and no conversion order has been obtained, there is no any approval of the layout. The defence of OP that Government banned the land conversion and layout formation from July-2006 for approval of the Master Plan and now that land lock is unlocked, OP had applied for conversion, within 6 months it is likely to obtain approval of the layout cannot be accepted. OP has not produced any material to substantiate the defence that it had applied for the conversion and approval of layout. The complainant cannot be made to wait indefinitely for approval of layout plan and for obtaining the conversion. In spite of repeated demands and legal notice, OP has not complied the demand to refund the amount paid. When OP was unable to form the layout, it would have been fair enough on its part to refund the amount received as an advance to the complainant. There is no merit in the contention that the complainant is not a consumer as defined under the act and complaint is barred by limitation. When once the OP has received the initial advance, till the sale deed is executed or amount is refunded, the cause of action continuous to claim the reliefs. OP as a developer has received the advance sale consideration which includes service charges of developing the layout as such the amount paid also includes sale consideration and the service charges, as such the complainant is a consumer as defined under the Act, having availed the services of the OP for developing the layout and to register the site. The other partners of the OP firm are not necessary parties as OP firm is represented by one of partners who has executed the agreement deed.

The act of OP neither in forming the layout and executing the sale deed nor refunding the advance received amounts to deficiency in service on its part. The complainant is entitled for refund of the amount paid as initial advance with interest at 12% pa. by way of compensation along with litigation costs 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.

OP is directed to refund an amount of Rs.2,20,000/- with interest at 12% p.a. from the date of respective payments till the date of realization and pay litigation costs of Rs.2,000/- to the complainant.

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

(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 September 2011.)

MEMBER                           MEMBER                   PRESIDENT

Cs.