COMPLAINT FILED ON: 20.05.2011
DISPOSED ON:17.12.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
17th DAY OF DECEMBER 2011
PRESENT :- SRI. B.S. REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI.M.MUNIYAPPA MEMBER
COMPLAINT NOs.953/2011,
954/2011, 955/2011 & 956/2011
COMPLAINT NO.953/2011 Vinay.G.Bhat,
COMPLAINANT S/o G.V.Bhat,
Aged about 49 years,
No.A-2,004 White House,
R.T.Nagar II Block,
Bangalore – 560 032.
COMPLAINT NO.954/2011 Smt. Mamta V. Bhat,
COMPLAINANT W/o Vinay G.Bhat,
Aged about 42 years,
No.A-2,004 White House,
R.T.Nagar II Block,
Bangalore – 560 032.
COMPLAINT NO.955/2011 G.V.Bhat,
COMPLAINANT S/o late V.S.Bhat,
Aged about 78 years,
No.A-2,004 White House,
R.T.Nagar II Block,
Bangalore – 560 032.
COMPLAINT NO.956/2011 G.V. Bhat,
COMPLAINANT S/o late V.S.Bhat,
Aged about 78 years,
No.A-2,004 White House,
R.T.Nagar II Block,
Bangalore – 560 032.
(Adv:Sri.R.V.Jayaprakash)
V/s.
OPPOSITE PARTY M/s. Royal Enclave,
Having its Registered Office at No.604, Vaishnavi Paradise, Sangam Circle,
8th Block, Jayanagar, Bangalore.
Represented by its Partner
Mr.V.Bhaskar Reddy.
( Adv:Sri. G.S.Suresha)
C O M M O N O R D E R
SRI. B.S. REDDY, PRESIDENT
The complainants being the members of the same family filed these complaints U/s. 12 of the Consumer Protection Act of 1986, seeking direction against the Opposite Party (herein after called as O.P) to refund the advance amount paid towards purchase of the sites with interest at 4% p.m. on the allegation of deficiency in service on the part of the OP.
Since OP is common in all these complaints, the questions involved and the relief’s claimed being similar, in order to avoid the repetition of facts and multiplicity of reasoning’s these complaints are stand disposed of by this common order.
2. The case of the complainants to be stated in brief is that:
OP being a partnership firm engaged in forming the residential layouts issued advertisements in respect of the proposed layout called “Royal Enclave” at Maratikyalanahalli Village, Jayapura Hobli, Mysore Taluk, Mysore District. The complainants being lured away with the advertisements and brochures issued, entered into an agreement to purchase the sites proposed to be formed in the said layout and paid initial sale consideration of Rs.1,20,000/- for the sites measuring 30 X 40 and an amount of Rs.2,40,000/- for the site measuring 40 X 60 feet and entered into an agreement to purchase the sites. OP has executed the agreement deeds for sale of the sites on 18.06.2006 & 24.06.2006. OP failed to form proposed layout. OP had issued letter dt.29.04.2006 to each of these complainants assuring that in case OP was not able to get the necessary approval for the plan from Muda, OP would refund the amount paid at the time of booking the sites with interest at 4% p.m. The complainants addressed letters to OP requesting for refund of the amount with interest as agreed by OP. In reply for the said letter, OP had written another letter dt.03.10.2008, admitting the receipt of the advance sale consideration of total amount of Rs.6,00,000/- assuring to refund the amount but failed to pay the same. The notice was issued on 01.09.2009 for refund of the amount with interest and OP has replied for the said notice stating that MUDA has sanctioned the layout plan on 11.02.2009 and the release order has also been obtained and the layout is ready for registration from the 2nd week of October-2009. Even thereafter the complainants approached OP on several occasions and made in investigation of the spot and found that no layout has been formed. On further enquiry they came to know that MUDA has not given approval for the entire layout and it has granted approval only in respect of the part of the layout. Thus it is stated that OP failed to refund the amount and not fulfilled its obligation of forming the layout. The complainants felt deficiency in service on the part of the OP and filed these complaints seeking the relief as stated above.
3. On appearance, OP filed version admitting that these complainants have entered into an agreement to purchase the sites in the proposed layout “Royal Enclave” and have paid the initial sale consideration as shown in the complaint. It is contended that the complainants are not Consumers, there is no deficiency in service on the part of the OP, the complaints are barred by limitation, the complaints are bad for non-joinder of other partners of OP as necessary parties.
It is stated 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 extended from time to time and now the same was unlocked by approving the Master Plan. Now the OP has applied for the conversion and approval of the layout, the process of completion of the project is very much on and it shall be completed within a period of 6 months. Delay in completion of the project is not intentional and it is only due to restriction laid by the Government and the inevitability of not getting the conversion order, approval from the competent authority. Hence, it is prayed to dismiss the complaint.
4.The complainants in order to substantiate complaint averments filed affidavit evidence. The Managing Partner of OP filed affidavit evidence in support of defence version.
5. Arguments heard from complainant’s side, taken as heard from OP side.
6. Points for consideration are:
Point No.1:- Whether the complainants have proved
the deficiency in service on the part of
the OPs?
Point No.2:- If so, whether the complainants are
entitled for the reliefs now claimed?
Point No.3:- To what Order?
7. We record out 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
8. At the out set, it is not in dispute that these complainants after going through the brochure and advertisement issued by OP in respect of proposed layout called “Royal Enclave” at Maratikyalanahalli Village, Jayapura Hobli, Mysore Taluk, Mysore District entered into an agreement to purchase sites and paid initial advance amount. OP executed agreement deeds on 18.06.2006 & 24.06.2006 in respect of the sites bearing No.40, 110, 19 and 18. The complainant in complaint No.955 and 956 is one and the same. He has paid an amount of Rs.2,40,000/- for site No.40 measuring 40 X 60 feet and Rs.1,20,000/- for site No.18 measuring 30 X 40 feet. The other two complainants each paid Rs.1,20,000/- for the sites measuring 30 X 40 feet. OP has issued letter dt.29.04.2006 stating that each of these complainants have booked the sites and the sites will be allotted when OP receive MUDA approval and in case if they are not able to get the approval, they will refund the amount paid at the time of booking with 4% interest per month. Further OP has issued letter dt.03.10.2008 to complainant in complaint No.955 and 956/2011 admitting that OP has received total amount of Rs.6,00,000/- and the accounts balance as on 30.11.2008 will be Rs.13,32,000/-. OP committed to make payment on first week of November-2008 as pr their payment schedule. For the legal notice dt.01.09.2009 OP had sent reply on 29.09.2009 admitting the receipt of advance sale consideration stating that MUDA has sanctioned the layout plan on 11.02.2009, layout is ready for registration from 2nd week of October-2009.
9. Though OP has contended that layout has been duly approved by MUDA on 11.02.2009 and the same is ready for registration but no document is produced in support of the same. From the affidavit evidence of the complainants it becomes clear that no layout has been formed and there is no any approved layout plan, in view of the same, the version of the OP that layout has been duly approved and the same is ready for registration cannot be accepted. When OP was not able to form the layout, it would have been fair on its part in refunding the amount received as advance sale consideration. Though in the letter dt.03.10.2008 OP had undertaken to refund the amount in the first week of November-2008, but till date no amount has been refunded to these complainants. The act of OP in not forming any layout nor refunding the amount received from the complainants, amounts to deficiency in service.
10. The complainants are claiming interest at 4% p.m, based on the letter stated to have been issued on 29.04.2006 by OP. It may be noted that the agreement deeds entered into between the parties is dt.18.06.2006 & dt.24.06.2006, but in the agreement deeds there is no any clause incorporated regarding interest payable at 4% p.m. In case if there was such agreement to pay interest at 4% p.m. the agreement deed executed could not have remained silent about such a material condition. OP without acquiring any property and obtaining any conversion order has made these complainants to part with advance sale consideration with assurance of allotting the sites. In other complaints against the same, OP while allowing the complaints this Forum has ordered interest at 18% p.a. on the advance sale consideration by way of compensation. Under these circumstances, we are of the view that the complainants are entitled for refund of the amount with interest at 18% p.a. by way of compensation from the date of respective payments, till the date of realization and pay litigation costs of Rs.3,000/- in each case. Accordingly we proceed to pass the following:
O R D E R
The complaints filed by the complainants are allowed in part.
In complaint No.953/2011 Op is directed to refund an amount of Rs.1,20,000/- with interest at 18% p.a. from 24.06.2006, till the date of realization and pay litigation cost of Rs.3,000/- to the complainant.
In complaint No.954/2011 Op is directed to refund an amount of Rs.1,20,000/- with interest at 18% p.a. from 18.06.2006, till the date of realization and pay litigation cost of Rs.3,000/- to the complainant.
In complaint No.955/2011 Op is directed to refund an amount of Rs.2,40,000/- with interest at 18% p.a. from 18.06.2006, till the date of realization and pay litigation cost of Rs.3,000/- to the complainant.
In complaint No.956/2011 Op is directed to refund an amount of Rs.1,20,000/- with interest at 18% p.a. from 24.06.2006, till the date of realization and pay litigation cost of Rs.3,000/- to the complainant.
This order is to be complied within four weeks from the date of this order.
Send the copy of this order to both the parties free of cost.
This original order shall be kept in the file of the complaint No.953/2011 and a copy of it shall be placed in other complaint.
(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 17th day of December-2011.)
MEMBER MEMBER PRESIDENT
Cs.
