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

15^TH DAY OF SEPTEMBER 2015

O R D E R

SRI.P.V.SINGRI, PRESIDENT

This complaint is filed by the complainant under Section 12 of Consumer Protection Act, 1986 against Opposite Part (herein after referred as OP) with a prayer to direct the OP  to refund a sum of Rs.3,40,000/- paid towards the purchase of the site together with interest at 24% per annum, damages and cost of litigation.   

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

In the month of March-2014 the complainant was attracted by the advertisement given by the OP in a news channel, decided to purchase a site being formed by the OP at village Naganahalli, Kaval, illavala Hobli, Mysore Taluk at Rs.350/- per square feet and contacted the office of the OP situated at Sadashivanagar, Bangalore.  The OP informed the complainant that the site formed by them are under tremendous demand and asked the complainant to pay a token advance of Rs.10,000/- forth with and to pay a sum of Rs.3,30,000/- being the advance sale consideration.  Since, the complainant was extremely interested in buying a property at Mysore agreed to pay the said amount.  The OP informed the complainant that the site visit will be arranged only after paying the advance sale consideration.  The complainant paid a total sum of Rs.3,30,000/- by cheque on 10.03.2014 and Rs.10,000/- in cash.  The OP after being received Rs.3,40,000/- from the complainant and after repeated request and demands arranged for a visit to the site.  The complainant on her visit to the spot was shocked and surprised to find that no layout was formed in the land shown by the OP and the lands were still under cultivation.  The complainant was unable to take any construction work in scheduled property.  No layout was formed as per the brochure published by the OP.  The complainant therefore demanded the OP to refund the entire amount of Rs.3,40,000/- with damages and interest since the OP was trying to play fraud upon the complainant.

3.  The OP is not entitled to illegally with-hold the amount of Rs.3,40,000/- paid by the complainant since the OP had not formed layout as per brochure.  The complainant demanded refund of the advance amount paid by her.  Had the OP formed layout as per brochure the complainant would have proceeded to purchase the site.  The OP hoodwinked the complainant by showing the brochure and made her to believe that the layout has been formed as per the brochure and made the complainant to part with huge amount.  The OP failed to comply with the legitimate demand made by the complainant to refund the advance amount of Rs.3,40,000/-.   Since, the OP started giving evasive reply to the complainant she was forced to issue a registered notice dated 28.05.2014 to the  OP demanding to return of entire advance amount of Rs.3,40,000/- together with interest at 24% per annum.  Though the notice was served upon the OP they failed to comply with the demand made in the legal notice and gave an untenable reply.  The OP has played fraud upon the complainant by showing a colourful brochure though actually no layout was formed by them.  The OP is liable to refund the advance amount to the complainant as they have cheated the complainant by showing a brochure and without actually forming the layout at schedule site. 

4. For the aforesaid reasons the complainant prays for an order directing the OP to refund Rs.3,40,000/- together with interest at 24% per annum, liquidated damages suffered by her and the cost of proceedings.

5. In response to the notice issued, OP appeared through their Advocate and filed their version contending in brief as under:-

The complainant approached the OP at its office and offered to purchase a site which is to be developed in a project called         Trans Spoorthi at Mysore.  The OP had collected Rs.10,000/- from complainant as token advance for the site bearing No.413 measuring 60 x 40  feet at a pre-launch offer price of Rs.350/- per square feet.  The complainant also paid Rs.3,30,000/- as advance sale consideration for the purchase of site bearing No.413.  The sale agreement has been entered into between complainant and the OP.   OPs are abide by the terms of sale agreement and even today are ready to register the site No.413 in favour of the complainant.  There is no deficiency in service on the part of the OP.

 The OP is not liable to refund the amount with interest to the complainant as sought by her in this complaint.  The complainant has to restrict her prayer in accordance with the agreement entered into between herself and the OP.  This Forum has no jurisdiction as the claim of the complainant is based on agreement of sale.  The complainant is not a ‘Consumer’ falling under the definition of 2(i) of the Act.  The complainant has to approach the Civil Court in the event of breach of agreement of sale executed in her favour.  The complainant has no cause of action in the complaint to be filed in this forum.  The proper forum would be Civil Court, hence the complaint is liable to be dismissed. 

6. For the aforesaid reasons OP prays for dismissal of the complaint with exemplary cost.

7. On the rival contention of the both the parties, the points that arises for our determination are as under:

1. Whether, the complainant proves the deficiency of service on the part of the OP as alleged in the complaint?

2. If So, to what relief or order the complainant is entitled to?

8. The complainant to substantiate the allegations made in the complaint, filed her affidavit by way of evidence and also submitted her written arguments.  Though the OP filed their version but failed to laid any oral evidence in support of their case, no written or oral argument were submitted on behalf of the OP.

9. Perused the allegation made in the complaint, the document along with complaint, the sworn testimony of the complainant and the written arguments.  Also perused the averments made in the version filed by the OP.  As already stated above the OP failed to let him any evidence on their behalf. 

10. Our answer to the above points:

11. Admittedly, the complainant attracted by the TV advertisement of the OP regarding the proposed layout at Naganahalli Kaval Village, Ilvala Hobli, Mysore Taluk, agreed to purchase a site measuring 60 feet x 40 feet and entered into agreement of sale.

12. Admittedly, the complainant has paid the advance sale consideration of Rs.3,40,000/- to the OP which OP admits in their version.   It could be seen from the material placed on record that the price of the site bearing No.413 which complainant agreed to purchase from the OP was Rs.8,40,000/- at Rs.350/- per square feet as stated above.  Out of total consideration of Rs.8,40,000/- the complainant has paid Rs.3,40,000/- to the OP. 

13.  The complainant claims that looking to the brochure furnished by the OP she was under the impression that the said project Trans Spoorthi has been completed and the sites are ready for allotment so that she can take up construction of a house at the said site.  The complainant further claims that when the site visit was arranged by the OP she found that no layout has yet formed by the OP as mentioned in the brochure and the lands are still under cultivation.  She further claims that she was shocked to find that absolutely no any preliminary work has been done for the formation of the layout and she could not take up construction of the house in near future.  Therefore, the complainant disappointed with the conduct of the OP demanded her money back.  The OP contended that in terms of the application form for allotment of site and the terms of the agreement of sale the complainant is not entitled to refund advance amount paid by her.  Therefore, it is contended by the OP in their version that the complainant is not entitled for refund of the advance sale consideration so also any interest on the same. 

14. In the reply notice dated 04.06.2014, the copy of which is produced by the complainant herself, the OP took up a contention that as per condition No.5 of the application form the complainant is not entitled for refund of advance money at any point of time.  It is further mentioned that the agreement of sale be executed only after the receipt of 35% of total sale consideration to give a legal authentication to the transaction.  Further it is said in the reply notice that as per condition No.9 (C) of the sale agreement the amount once paid to M/s.Transcity Developers for plot will not be refund at any point of time except as provided elsewhere in the said agreement.  In view of the terms and condition mentioned above it is contended by the OP that the complainant is not entitled to refund of the advance money of Rs.3,40,000/- paid by her.

15. The OP except filing the version did not produce either the copy of application form submitted by the complainant to ascertain as to what are the terms and conditions mentioned therein.  The OP also did not produce any material /documents to substantiate their contention that as per condition No.9 (C) of the sale agreement the amount once paid to M/s.Transcity Developers for plots will not be refunded at any point of time except as provided elsewhere in the said agreement.  The OP also did not let in any evidence to substantiate their contention raised in the version.  In absence of credible oral evidence as well as documentary evidence it cannot be believed that either the plot application form or the terms and conditions of the agreement of sale bars refund of any advance money paid by the complainant towards the purchase of the plot. 

16. The sworn testimony of the complainant stands unchallenged.  We have no reasons to disbelieve the sworn testimony of the complainant.  More over the OP did not produce any documentary evidence to substantiate their contentions that the complainant is not entitled for advance amount paid by her towards purchase of the plot.  The complainant reiterated in her affidavit evidence that when she visited the site to her shock she found that the land where the layout was to be formed was still under cultivation and she would not be able to take up construction of house property in near future.  It is further stated that the OP had not at all formed any layout as projected in their brochure.  She contended that believing the advertisement and the colourful brochure given to her by the OP she booked a plot with a fond hope of constructing a house at Mysore.  However, her dreams were shattered and she found that the OP has not at all formed any layout in the schedule land.  Therefore, she was compelled to withdraw herself from purchasing the site. 

17. It appears that the OP made the complainant to believe that the layout has been formed and ready for registration and possession as projected in their brochure produced at Document No.1.  The brochure and Document No.1 gives an impression that the formation of the layout is complete and the sites have been ear marked and ready for registration and possession.  However, the allegation made by the complainant goes to show that the OP have played fraud on her by making her to believe that the formation of the layout is complete and sites are ready for registration and possession.  Though the complainant was allotted site No.413, but infact no sites were formed on the ground.  This conduct of the OP certainly amounts to deficiency in service on their part.   The OP by playing fraud on the complainant have lured the complainant in purchasing a plot knowing fully well that the layout itself has not at all been formed and the site allotted to the complainant cannot be identified at all.  Under this circumstances the complainant is entitled to claim refund of the advance sale consideration paid by her to the OP.  Further the OP is also liable to compensate the complainant for hardship, inconvenience and mental agony under gone by her.

18. The OP took up a contention that complainant is not a ‘consumer’ as defined under the C.P. Act 1986 and she has to approach the competent Civil Court for enforcement of agreement of sale.  Admittedly, the OP is a land developer and published a brochure at Document No.1 inviting the public to purchase site in a project called  “Trans Spoorthi” at Naganahalli Kaval Village, Ilvala Hobli, Mysore Taluk.  The complainant having attracted by the brochure published by the OP has agreed to purchase a plot at the said layout for a sum of Rs.8,40,000/- and paid an advance amount of Rs.3,40,000/-.  Thus looking to the transaction between the parties one can easily say that the complainant is a ‘Çonsumer’ as defined under the C.P. Act 1986.  Moreover, the OP has also failed to demonstrate by producing relevant material as to how the complainant would not become consumer as defined under C.P.Act 1986.  Therefore, we are of the opinion that the complainant is a consumer as defined under the C.P. Act and is entitled to maintain a present complaint against the OP. 

19.  For the discussion made above we are of the opinion that the complainant is entitled to recover Rs.3,40,000/- paid as advance sale consideration to the OP towards purchase of site bearing No.413 at ‘Trans Spoorthi’, a residential layout at Mysore.  The OP have refused to refund advance amount without valid reasons on the request of the complainant.  Therefore, they are liable to pay a reasonable amount of interest on the said advance sale consideration apart from a reasonable amount of compensation for causing anxiety and mental agony to the complainant. 

20. Having regard to the fact and circumstances, we are of the opinion that the following order would sufficient to meet the ends of justice.

21. In the result we proceed to pass the following:-

ORDER

1. The complaint filed by the complainant u/s.12 of the Consumer Protection Act 1986 is allowed in part.

2. The OP is directed to refund a sum of Rs.3,40,000/- to the complainant together with interest at 9% per annum from 28.05.2014 till the date of realization.

3.  Further the OP is directed to pay compensation of Rs.5,000/- to the complainant for deficiency in service on their part together with litigation cost of Rs.2,500/-. 

4. OP shall comply the order of this Forum within a period of six weeks from today.

5. Furnish free copy of this order to both the parties.

 (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 15^th day of September 2015)

MEMBER                               MEMBER                              PRESIDENT NRS* 

C.C.No.1190/2014

Complainant                          -       Mrs. P.M.Kaveramma,

-vs-

Opposite Parties                    _        M/s.TRANSCITY DEVELOPERS,

Witness examined on behalf of the complainant dated 16.01.2015

1. Smt.Kaveramma

Witnesses examined on behalf of the OP

1. Sri.Nandagopal, Managing partner,

MEMBER                               MEMBER                              PRESIDENT