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

DATED 28^TH DAY OF NOVEMBER 2022

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. Directing the OP to pay Rs.6,77,600/- to the complainant with 18% interest from 24.07.2019 till payment.
2. Directing the OP to pay Rs.5,00,000/- as compensation amount for inconvenience, loss, hardship, mental agony etc.,
3. Directing the OP to pay Rs.50,000/- towards cost of this proceedings.
4. Directing the OP to pay such other appropriate reliefs deems fit.

2. The case set up by the complainant in brief is as under:-

He has entered into an agreement with the OP for purchase of site bearing No.461, measuring east to west 40 feet and north to south 30 feet in the proposed layout i.e., ‘Terracon Pride county” situated at Gandra Gulipura Village, Nelamangala Taluk. This complainant and other four persons namely Jecob Mathews, Ashwin, Swamy M and Balasubramanya, have entered into Agreement of Sale with the OP in respect of site No.499, 500, 462 and 460 respectively.  The amount payable by the complainant was Rs.6,60,000/- and the OP has collected Rs.1,50,000/- and the complainant agreed to pay the remaining Rs.5,10,000/- within 30 monthly installments.  

3. It is further case of the complainant that as per the assurance given by the OP that he will complete and develop the layout within a period of 30 months and registration will be done within 30 months, they have entered into the aforesaid agreement. There was no development of this part at the time of execution of the Agreement.  The OP handed over a plan showing the location of the site in the plan to be allotted to the complainant along with pamphlet assuring the development of all the amenities. Believing the assurance given by the OP, the complainant has also paid the balance of money by way of installments regularly and he has paid Rs.4,40,000/-  and the payments were made before June 2016.  The OP has not carried out any development work in the proposed layout.  Whenever the complainant enquired and questioned the OP he was always informing that the work will be commencing soon and it will be completed at war footing basis within a period prescribed.  Though the period of 30 months which was scheduled to expire by June 2016 no development work were carried out at all.  The only work done was construction of compound wall half way.  The sites were not identified and the complainant was unable to identify any site in the layout.  
4. The complainant came to know later that the OP has collected money for more than 500 sites and there was not even any space available for more than 300 sites.  The purchase of lands for formation of sites was not completed and there is no chance for developing the sites. The villagers were not prepared to sell the properties to OP and some of them who had agreed to sell to the OP have sold it to others.  The complainant came to know that the OP had not even purchased the land when he has collected the money from him in the year 2013. In view of this the complainant was constrained to demand return of money with interest.  
5. The OP has partly agreed to return the money and issued six postdated cheques in favour of the complainant and the said cheques were dishonored.  The complainant has also filed a complaint before the court for the offences u/s 138 of the N.I. Act after issue of emails and legal notice.  
6. At last the complainant got issued a legal notice on 11.11.2019 calling upon the OP to repay the amount. Inspite of receipt of the notice the OP neither paid the amount nor replied the same and he failed to discharge the debt. The OP has failed to render proper service to the complainant and thereby he has committed deficiency of service in not developing the land in time and not executing the sale deed and not refunding the consideration amount paid by the complainant. Hence the complainant has filed this complaint.
7. In response to the notice, OP appears and files version, has clearly admitted that he and the complainant have entered into sale agreement and the complainant agreed to purchase the site measuring 30X40 feet for an amount of Rs.6,60,000/-.  The complainant after execution of the sale agreement has totally paid Rs.4,40,000/- and he still liable to pay Rs.2,20,000/-.  As per the terms of the application form and agreement of sale once the amount is paid to purchase the site, the same shall not be refunded at any point of time. The purchaser is only entitled to get the registered sale deed in respect of the site.  
8. It is the case of the OP that the complainant and four others who have also entered into an agreement to purchase the sites with the OP have requested the OP to return the amount paid by them.  There is no option to return the amount. Hence the OP has declined to return the amount. At that time the complainant and four others have requested this OP to allot the alternative site and as per their request the OP has agreed to execute the registered sale deed in respect of site No.286, 332, 333, 372, 373 and 374. Even after giving the option for registration of different sites the complainant and four others have not come forward to get the registered sale deed.  Thereafter the complainant and four others requested for issue of separate cheques each for a sum of R.6,77,600/- and finally all of them have forcibly made this OP for issue of six separate cheques on different dates on 29.07.2019.  Even though the complainant has paid a sum of Rs.4,40,000/- he and four others have forcibly obtained the cheque for Rs.6,77,600/- by including the interest.  This OP is not liable to refund the amount as per the terms of the agreement.  The complainant has not returned the original Agreement of sale and other documents executed by this OP. Hence it is not possible for this OP to return the amount at a time.  This OP has already sent email to the complainant on 23.07.2019 and informed him not to present the cheques. The OP has also given instruction to his banker to stop the payment. He has also issued a notice to the complainant on 25.07.2019 intimating the complainant not to present the cheques. Inspite of that the complainant has presented the cheque. When the complainant has obtained cheques from this OP in the circumstances, stated above, there is no deficiency of service on the part of this OP and he is not liable to pay any interest to the complainant. This OP has developed the site within the time and the complainant himself has not come forward to register the site. Hence the complainant has not liable for any relief and prays for dismissal of site.
9. The complainant has filed his affidavit evidence and relies on 24 documents.  Though sufficient opportunity was given to the OP to adduce evidence, has not appeared and filed any evidence. Hence evidence of OP is taken as Nil.
10. Both the parties have not produced any written arguments nor oral arguments. Hence arguments taken as nil and posted for orders.

11.     The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

12.   Our answers to the above points are as under:

       Point No.1:  Affirmative

      Point No.2: Affirmative in part

      Point No.3: As per final orders

REASONS

13.    Point No.1 AND 2: Perused the complaint, version and documents filed by the complainant.

14.     It is undisputed fact that the complainant with four other persons namely Jecob Mathews, Ashwin, Swamy M and Balasubramanya, have entered into sale agreement to purchase site No.499, 500, 462 and 460, respectively from the OP for a sale consideration of Rs.6,60,000/-.  The Op has collected a sum of Rs.1,50,000/- each from the complainant and others as advance amount and the complainant and others have agreed to pay the balance amount of Rs.5,10,000/- within 30 months by way of monthly installments.  

15.     The OP has given an assurance that he will complete and develop the layout within a period of 30 months and the registration will be done within the said period.  The OP has further assured the complainant and others that all the necessary developments of forming sites, laying the road all around the compound wall, black top roads, avenue plantation, parks and children play area, 24 hours water supply, sewage supply connection to individual plot, electricity, round the clock security will be provided within the 30 months period.  The OP has also handed over a plan showing the location of the sites in the plan to be allotted to the complainant along with complex.  Believing the words of the OP the complainant has paid an amount of Rs.4,40,000/- by way of installments regularly. These payments were made prior to June 2016. No development work was carried out.  After that the complainant and others came to know that this OP has collected the amount for more than 500 sites, even though there were not even any sites available for more than 300 sites.

16.     It is further grievance of the complainant that after coming to know about the inaction on the part of the OP in developing the layout he and others have approached the OP and demanded him to return the amount but the OP has refused to pay the amount alleging that there is a clear term in the agreement that he will not refund the amount and they have only entitle to get the registered sale deed. After several request and demand made by the complainant and others the OP has issued the cheques for Rs.6,60,000/- and the same was dishonored and the complainant and others have proceed to register a complaint us 138 of N.I. Act and also u/s 420 IPC.

17.     In support of his contention the complainant has relied on 24 documents and they are only the copies of advertisement broacher and copy of the sale agreement, copy of email transaction and copy of the cheque, bank memo, legal notice, postal acknowledgement and legal notice and reply notice.  

18.     On the other hand even though the OP has appeared and filed his version has neither adduced any evidence nor submitted any arguments.  

19.     The only contention taken by the OP is that even though he has formed the sites and he is also gave option to the complainant and others that he will execute the registered sale deed in respect of other alternative site the complainant has not come forward to get the registered sale deed. This complainant and four others have forcibly taken the cheques for Rs.6,77,600/-. Even though the complainant has paid Rs.4,40,000/- and he is in due of Rs.2,20,000/-.  As per the terms of the sale agreement he is not liable to return any amount and the complainant has to get the registered sale deed from him.  In addition to this the complainant has also not returned the original agreement of sale and other documents executed by this OP and hence it is not possible for him to refund the amount.  He has requested the complainant and others not to present the cheque. Inspite of that the complainant has presented the cheques and also got registered a criminal case against him.  Hence he is not entitled to return any amount.

20.     The complainant has entered into the agreement with a fond hope that he will get a residential site in the proposed layout formed by the OP by paying Rs.1,50,000/- as advance amount and also paid Rs.4,40,000/- to the OP till July 2016. When the OP has failed to develop the layout and form the site and failed to allot the site and execute the registered sale deed he has demanded the OP to refund the amount. Even though Op has taken the contention that he has developed the layout and he was in the process of allotment of the sites and execution of the sale deeds the complainant has demanded him to return the amount and he has not come forward to get the registered sale deed.  On the other the complainant has forcibly taken the cheque for Rs.6,77,600/- ie., with interest from the OP and the complainant has presented the cheque by ignoring the request made by this OP for not to present the cheque.

21.     If really the OP has formed the layout and developed the site nothing prevented him from offering the complainant to get the sale deed in respect of the site which were going to be allotted in the name of the complainant.

22.     The OP instead of executing the sale deed in favor of the complainant in respect of site No.461 he has offered the complainant to get the sale deed in respect of other site.  The conduct of the OP clearly discloses that he has simply offered the complainant even though he has not developed the said site in the said layout even after collecting huge amount from the complainant.  Even the cheque issued by the OP for refund of the amount was dishonored. The complainant cannot wait for an indefinite period to get the site from the OP after paying the amount in the year 2014.  Even though the complainant has entered into sale agreement on 20.01.2014 itself the OP is not ready to allot the site or to refund the amount till today. If really the OP has formed the layout and demarcated the site nothing prevented him from producing the document before this commission. Under these circumstances the complainant has clearly established the deficiency of service and unfair trade practice by the OP in this transaction. Hence the complainant is entitled for the relief claimed in this complaint.  

22.     The complainant is entitled for refund of Rs.4,40,000/- with interest at 12% p.a., from the date of complaint till realization.  When the OP has failed to hand over the site and execute the registered sale deed the complainant has suffered mental agony and also financial loss. The OP has also made the complainant to approach this Commission and also other civil courts and other courts without performing his part of the obligation under the agreement after receiving substantial amount from the complainant. Hence the complainant is entitle for a compensation of Rs.1,00,000/- and litigation expenses of Rs.10,000/-. The complaint is liable to allowed in part. Hence we answer point No.1 in affirmative and Pint No.2 partly in the affirmative.

23.    Point No.3:- In view the discussion referred above,

O R D E R

1. The complaint is allowed in part.
2. OP is directed to refund Rs.4,40,000/- with interest at 12% p.a., from the date of complaint till realization.
3. OP is further directed to pay Rs.1,00,000/- towards compensation and litigation expenses of Rs.10,000/- to the complainant.
4. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 16% p.a. after expiry of 60 days on Rs.4,40,000/- till final payment.
5. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 28^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;  NIL