BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

23^rd DAY OF JULY 2016

O R D E R

SMT. P.K SHANTHA, MEMBER

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Party (herein after referred as OP) with a prayer to direct the OP to return the amount of Rs.1,40,000/- along with interest @ 18% p.a from the date of payment and to pay a sum of Rs.50,000/- towards compensation for the pain and suffering including cost of litigation.

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

Based on the representation of the OP a layout has been formed by them in an area measuring several acres and situated in a decent location having approved by DTCP, the OP coerced the complainant to enter into an agreement of purchase of a site/plot No.491, in the layout called as “Swiss Park” at Malachanahalli and Tadur Villages, Jangamakote Hobli, Shidlaghatta Taluk, Chikkaballapur District, measuring 1200 square feet.  The complainant has paid total sum of Rs.1,40,700/- on two dates.  However even though couple of years have passed there were no sign of OP getting the approval and other permission from the competent authorities.  Subsequently on 16.08.2010 the OP called upon the complainant inviting him to complete the registration process.  On receipt of the OP’s letter the complainant with a view to ascertain the exact location of the plot allotted to him and also to determine the development of the project, visited the plot.  On a visit to the plot, the complainant was not only shocked but also surprised to know that the project in question had hardly taken off and there was no demarcation to the land.  That apart the complainant was informed by the OP that the site promised by the OP to be sold to the complainant earlier, was not being allotted, but instead the OP offered a different site in a different locality, which the complainant was not agreeable to take.  He approached the OP personally and made innumerable telephonic calls expressing his displeasure and unwillingness to purchase the site in view of all the discrepancies and the changes in the original layout plan.

3. It is pertinent to add at this stage that subsequent to the execution of the agreement the layout had been completely changed and the location of the site allotted to the complainant was totally different and the land not only looked barren but also was unfit for habitation/living.  OP promised to the effect that they would allot a site in a good locality turned out to be false.  This attitude of OP clearly shows that the OP had intention of making unlawful gain.  In the mean time OP sent another letter on 20.12.2011 calling upon the complainant to complete registration process, failing which, the plot allotted to the complainant would be moved to a new locality which may be approved or not approved as per the availability of the plots in the project.

4. It is relevant to state that the complainant has paid total sum of Rs.1,40,700/-, OP failed to comply with the terms and conditions of the agreement and perform its part of the contract.  The complainant has invested hard earned money into the OP project have been driven to untold misery and hardship as the amount has been stuck at the OP end without fetching any returns.  Complainant made several correspondences with the OP both personally and over telephone requesting them to do the needful but did not respond.  Therefore the complainant was constrained to issue legal notice dated 16.12.2015 to the OP to return the amount of Rs.1,40,700/- with interest.  OP received the notice but not complied.  Hence, complainant felt deficiency of service on the part of OP and filed this complaint. 

5. The notice of complaint was issued to the OP and despite service of notice, OP failed to appear and contest the complaint and has been placed ex-parte.  Thereafter, the complainant filed his affidavit by way of evidence.

6. Perused the averments made in the complaint, affidavit filed in lieu of evidence, written arguments of complainant, documents filed by the complainant and other materials placed on record.

7. The allegations made in the complaint, sworn testimony of the complainant coupled with copy of agreement of sale go to establish that the complainant attracted by the promises made by the OP decided to purchase site/plot in the layout to be formed by the OP in the name and style “Swiss Park” at Malachanahalli and Tadur Villages, Jangamakote Hobli, Shidlaghatta Taluk, Chikkaballapur District, measuring 1200 square feet.  The total cost of the site/plot was Rs.4,02,000/-.  Complainant paid Rs.48,200/- on 15.01.2008 and Rs.92,500/- on 13.02.2008 totally Rs.1,40,700/- towards purchase of the site/plot No.491 by way of cheque, for which OP has executed agreement of sale on 28.02.2008 as per document No.1.

8. Admittedly, the OP has failed to get the approval and other permissions from the competent authorities and has also failed to develop the layout as promised by them.  It appears even today the residential layout as promised by the OP has not been developed and ready for allotment.  Subsequently on 16.08.2010 the OP invited the complainant to complete the registration process.  On receipt of the letter complainant visited the plot but he was shocked and surprised to know that the project in question had hardly taken off and there was no demarcation to the land.  Apart from that the OP informed that the site promised by the OP was not being allotted but instead OP offered a different site in a different locality.  But the complainant was not ready to take.  The OP even after period of 8 years from the date of execution of agreement of sale has failed to develop the site and execute the registered sale deed in favour of the complainant by receiving balance consideration as promised by them at the time of execution of agreement of sale.  Inspite of repeated requests and correspondence, OP failed to inform about the progress of the project.  Hence, complainant sent legal notice dated 16.12.2015 seeking refund of the amount paid along with interest @ 18% p.a within 15 days.  Inspite of receipt of notice, OP neither replied to the notice nor refunded the amount.  This conduct of OP amounts to grave deficiency of service.  OP has also failed to refund the advance amount to the complainant despite having failed to develop the layout as promised by them even after period of 8 years.  The conduct of OP must have put the complainant to great hardship, inconvenience and mental agony.  Therefore, the OP is also liable to pay compensation to the complainant apart from refunding the advance amount together with interest.

9. The very fact of OP not contesting the proceedings leads us to draw an inference that OP is admitting the claim of the complainant.  There is no reason to disbelieve the unchallenged affidavit evidence of the complainant and the documents produced.  The complainant suffered inconvenience and mental agony due to non performance of the promise made by the OP.    In view of the discussions made above, we are of the considered opinion that, the complainant has successfully proved the deficiency of service on the part of the OP.  Therefore, the OP has to be directed to refund Rs.1,40,700/- to the complainant together with interest @ 18% p.a from the date of actual receipt till the date of realization.  Further OP is directed to pay compensation of Rs.25,000/- to the complainant for having caused hardship, inconvenience and mental agony together with litigation cost of Rs.2,000/-.

10. 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.  OP is directed to refund Rs.1,40,700/- to the complainant together with interest @ 18% p.a from the date of payment till the date of realization.  Further OP is directed to pay compensation of Rs.25,000/- towards mental agony and hardship caused to the complainant along with litigation cost of Rs.2,000/-.

This order is to be complied within 30 days from today.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 23^rd day of July 2016)

MEMBER                            MEMBER                     PRESIDENT

Vln* 

COMPLAINT No.233/2016

Witnesses examined on behalf of the complainant dated 18.04.2016.

1. Sri.Jayarami Reddy N

   Witnesses examined on behalf of OP – Nil.

   Documents produced by the OP - Nil

MEMBER                           MEMBER                        PRESIDENT

Vln*