BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 15^th DAY OF FEBRUARY 2016

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Parties (herein after referred as OP) with a prayer to direct the OPs to refund him a sum of Rs.1,50,000/- together with interest and compensation of Rs.1,00,000/- with cost of litigation.

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

The complainant agreed to purchase a site in a residential layout to be developed by the OPs and paid an advance amount of Rs.1,50,000/- by way of cheque on 18.10.2006 and OPs having accepted the said amount executed an agreement of sale in favour of complainant and assured to fully develop the layout within a period of 24 months, in default to refund the advance amount together with interest @ 24% p.a and compensation.  The OPs failed to develop the layout within stipulated period and also failed to execute a registered sale deed in favour of the complainant as agreed in the agreement of sale.  Therefore, the complainant demanded the OPs to refund the advance amount together with interest @ 24% p.a and compensation.  The OPs having failed to allot the site to the complainant despite repeated demands, refunded the advance amount of Rs.1,50,000/- by way of cheque dated 30.03.2009 and Rs.75,000/- towards interest by way of cheque dated 16.05.2009, drawn on Andhra Bank, Vidyapeeta Link Circle Branch, Bangalore in favour of the complainant.  However, both the cheques, when presented, were dishonoured for ‘insufficient funds’.  Therefore, the complainant got issued legal notice to the OPs and when they failed to respond to the said notice, she lodged complaint under Section-138 of the Negotiable Instruments Act, on the file of 16^th Addl. Chief Metropolitan Magistrate, Bangalore and the learned Magistrate has taken cognizance of the offence committed by the OPs and registered a criminal case in C.C No.2617/2010 and issued summons to the OPs.

The OPs despite receiving advance amount, failed to allot a site in favour of complainant and execute necessary registered sale deed in terms of agreement of sale and also failed to refund the advance amount together with agreed rate of interest and compensation despite having failed to allot the site.  Therefore, the complainant got issued a legal notice dated 13.12.2013 to the OPs.  However, the OPs failed to comply the demand made in the notice.  Therefore, the complainant was compelled to approach the Forum.

For the aforesaid reasons, the complainant prays for an order directing the OPs to allot him a site measuring 30x40, in a developed project undertaken by them and execute the registered sale deed and deliver possession of the site or in the alternative to refund the deposit amount of Rs.1,50,000/- together with interest @ 24% p.a from the date of receipt till the date of realization, compensation of Rs.1,00,000/- and cost of litigation.

3. The OP entered their appearance through their advocate and filed their version contending in brief as under:

This Forum has no jurisdiction to entertain the present complaint and the complainant has to be directed to approach the competent civil court to enforce the agreement of sale.  The complainant was never ready to pay the balance consideration amount stipulated in the agreement of sale.  The agreement of sale executed by the OP has expired on 17.06.2008.  Therefore, the complainant was to initiate necessary steps to file a suit in a competent court of law on 17.06.2008.  The complaint is barred by limitation.  The OPs offered an alternative site to the complainant at current market price in the year 2009 but the complainant did not come forward to purchase the same.  Since, the complainant demanded to refund of entire amount paid by her the OPs have paid the entire amount to the OPs.  However, the complainant taking advantage of blank cheques given to her at the time of agreement of sale has created two cheques and filed false complaint on the file of 16^th ACMM, Bangalore for alleged offences under section 138 of N.I Act.  The complainant having come to know that the complaint filed by her is not maintainable has now approached this Forum.

For the aforesaid reasons, the OPs pray for dismissal of the complaint.

4. After filing of the version, the complainant was called upon to file her affidavit evidence.  Accordingly, she filed her affidavit evidence reiterating the allegations made in the complaint.  OPs failed to file their affidavit evidence in support of the averments made in the complaint despite sufficient time and opportunity given.  The complainant filed her written arguments.  The OPs failed to submit either written or oral arguments    

5. The points that arise for our determination in this case are as under:

        6. Perused the allegations made in the complaint, the averments made in the version, the sworn testimony of the complainant and her written arguments and documents relied upon by the complainant and other materials placed on record.

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

REASONS

8. The OPs admit the receipt of advance amount of Rs.1,50,000/- from the complainant by way of two cheques dated 18.10.2006 and also admit the execution of the agreement of sale dated 17.11.2006 in favour of complainant, copy of which is produced.  The perusal of copy of the agreement of sale discloses that the total consideration amount agreed between the parties is Rs.4,32,000/- for site measuring 30x40 in a layout to be developed by the OPs in the limits of Banandur Village, Bidadi Hobli, Ramanagar Taluk, Bangalore District.  Out of the total consideration amount of Rs.4,32,000/-, the OPs have received advance amount of Rs.1,50,000/- by way of cheque as stated above.

9. As per the recitals in the agreement of sale, the OPs have undertaken to develop the said layout within 24 months from the date of said agreement of sale failing which they have agreed to refund the advance amount to the complainant together with interest @ 24% p.a.  Admittedly, the OPs have failed to develop the layout within a period of 24 months as is evident from their version.  Though, the OPs contended that they offered an alternative site in other layout but there is no any material on record to believe the same.  The OPs having failed to develop the layout and allot a site to the complainant within stipulated period have refunded the said advance amount of Rs.1,50,000/- together with interest of Rs.75,000/- by way of two separate cheques dated 30.03.2009 & 16.05.2009.  However, both the cheques have been dishonoured for ‘insufficient funds’.  The complainant has initiated criminal proceedings Under Section 138 of the Negotiable Instruments Act for dishonor of both the cheques and the complaint No.2617/2010 is pending on the file of 16^th ACMM, Bangalore.  The OPs have admitted the said proceedings including the dishonor of the cheques issued by them.

10. Thus from the material placed on record, it is apparent that the OPs have failed to perform their part of obligation in terms of the agreement of sale and the same certainly amounts to grave deficiency in service.  Though the OPs have come forward to refund the advance amount together with interest but both the cheques issued by them have been dishonoured for ‘insufficient funds’.  This conduct of OPs in issuing cheques without making arrangements for sufficient funds apart from amounting to an offence U/s.138 of N.I Act also amounts to an offence U/s.420 of I.P.C.

11. In the given circumstances of the case, the complainant has successfully proved deficiency in service on the part of the OPs in terms of the agreement of sale.  The OPs are liable to allot a site if available to the complainant and execute a registered sale deed, in default refund the advance amount together with agreed rate of interest and compensation as claimed by the complainant.  The conduct of the OPs in committing breach of terms of sale must have caused untold hardship, inconvenience and mental agony to the complainant.  Therefore, we feel it appropriate to award compensation of Rs.1,00,000/- to the complainant.

12. Since, the OPs have failed to let-in any evidence in support of averments made in the version we don’t find any reasons to accept any of the contentions raised in the version.  Since there is no any material on record to show that there are any sites available with the OPs for allotment of the same to the complainant, we are not inclined to direct the OPs to allot a site to the complainant.  In view of the discussions made above, we are of the opinion that, the OPs have to be directed to refund the advance amount of Rs.1,50,000/- to the complainant from the date of receipt till the date of realization together with agreed interest @ 24% p.a, compensation of Rs.1,00,000/- towards deficiency in service and Rs.5,000/- towards cost of litigation.

13. The order could not be passed within the stipulated time due to heavy pendency.

14. In the result, we proceed to pass the following:

O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is allowed in part.  The OPs are jointly and severally directed to refund a sum of Rs.1,50,000/- to the complainant together with agreed interest @ 24% p.a from 18.10.2006 till the date of realization together with compensation of Rs.1,00,000/- and Rs.5,000/- towards cost of litigation.

The OPs shall comply the order passed by this Forum within four weeks from the date of communication.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 15^th day of February 2016)

MEMBER                           MEMBER                     PRESIDENT

Vln* 

Witnesses examined on behalf of the complainant dated 25.04.2014.

1. Smt.G. Lakshmi.

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite parties – Nil

Documents produced by the Opposite parties – Nil

MEMBER                            MEMBER                    PRESIDENT

Vln*