COMPLAINT FILED ON: 14.01.2011
DISPOSED ON: 16.11.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL
FORUM AT BANGALORE (URBAN)
16th NOVEMBER 2011
PRESENT:- SRI.B.S.REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
COMPLAINT NO. 96/2011
COMPLAINANTS SRI.R.MAHESH,
S/o. M.C.Ramaiah,
Aged about 30 years,
R/at 10, 2nd Main,
Byrasandra,
Jayanagara 1st Block East,
Bangalore-11.
(Adv: Y.R.CHIKKANNA)
V/s.
OPPOSITE PARTYS M/S.AMULYA HOUSING,
Represented by its
Managing Partner,
Sri.V.Uma Maheshwar Reddy,
Office at # 72/1B,
Mathrusree Arcade, 2nd Flr,
Kanakapura Main Road,
Jaraganahalli,
Bangalore.
( Adv: GANDHI LAW CHAMBERS)
O R D E R
SMT. M. YASHODHAMMA, MEMBER
This is a complaint filed by the complainant u/s. 12 of the Consumer Protection Act of 1986, seeking direction to the Opposite Party (herein after called as O.P) to refund the advance amount paid with interest at 24% p.a. and compensation and costs on the allegations of deficiency in service on the part of the O.P.
2. The brief averments made in the complaint are as follows.
O.P. is a partnership firm engaged in the business of forming residential sites and layouts in and around Bangalore. OP offered various sites propsed to be formed at Ittamadu Village, Bidadi Hobli, Ramnagar Taluk and District. Complainant paid two cheques dated 26/3/2007 for a sum of Rs.1,25,000/- each and another cheque dated 5/4/2007 for a sum of Rs.25,000/-. Totally complainant paid advance amount of Rs.2,75,000/- to O.P. for allotment of a site. OP issued receipts acknowledging the receipt of amount. On 24/7/2007, OP executed the agreement deed, agreeing to sell the site No.135 measuring 1500 Sq.ft. proposed to be formed at “Amulya Arizona 6th phase” for a total consideration of Rs.8,25,000/-. Even after completion of more than four years OP failed to allot the site as agreed and to execute the sale deed. OP assured to execute the sale deed within 30 days from the date of approval. Now OP is dodging the allotment under one or the other pretext. OP also refused to refund the amount. Complainant got issued legal notice on 23/3/2009 calling upon OP to refund the amount with interest within 15 days. There was no response. Hence complainant felt deficiency in service against OP. Under the circumstances he is advised to file this complaint against OP for a necessary reliefs.
2. On appearance OP filed the version OP admits receipt of Rs.2,75,000/- advance towards purchase of site and execution of agreement deed. It is contended by OP that the remaining consideration was agreed to be paid within 30 days from BMRDA approval of the layout and clause -3 of the agreement provides that the balance amount of Rs.5,50,000/- to be paid on or before the date of registration and registration shall be done within 30 days from the date of BMRDA approval. Therefore the complainant is entitled for registration of the sale deed only on BMRDA approval of the layout plan. OP has purchased the agricultural lands from various land owners, because of BMRDA has published notification dated 19/7/2006 and 20/3/2007 stating that it is going to prepare master plan for Ramnagar District, until finalizing of the master plan the concerned authority are restricted to give any conversion order, formation of layout. The conversion application filed by the vendors of the lands has been rejected by the Deputy Commissioner, Ramnagar District as per the endorsements dated 30/4/2009. OP has not deliberately postponed the registration of the site. There is no deficiency in service. OP is ready to execute the sale deed after obtaining the conversion order from the Deputy Commissioner and layout plan approved from the BMRDA. Complainant approached OP for refund of amount. OP has refunded Rs.30,000/- by way cash and agreed to pay the balance amount at the earliest. The voucher will be produced at the time of evidence. Among other grounds OP prayed for dismissal of the complaint.
3. In order to substantiate the complaint averments, complainant filed his affidavit evidence and produced receipt, copy of the agreement deed, application form, copy of legal notice and postal receipts. On behalf of OP V.Uma Maheshwar Reddy, Managing Partner filed his affidavit evidence in support of the defence version. O.P. has not produced any documents. Both Complainant and OP filed written arguments. Heard oral arguments from both the parties.
4. In view of the above said facts, the points now that arises for our consideration in this complaint are as under:
Point No.1:- Whether the complainant
proved the deficiency in service
on the part of the OP ?
Point No.2:- If so, whether the complainant is
entitled for the relief now claimed?
Point No.3:- To what Order?
5. We have gone through the pleadings of the parties both affidavit and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:
Point No.1:- In Affirmative.
Point No.2:- Affirmative in part.
Point No.3:- As per final Order.
R E A S O N S
6. At the out set it is not in dispute that OP is a partnership firm carrying on the business of forming residential sites and layout in and around Bangalore offered site No.135 proposed to be formed at Amulya Arizona 6th phase to be formed at Ittamadu village, Bidadi Hobli, Ramnagara Taluk, Bangalore District in the year 2007. On 26/3/2007 and 5/4/2007 complainant paid advance amount of Rs.2,75,000/- for a site measuring 1500 Sq.fts. OP issued the receipt acknowledging receipt of amount. On 24/7/2007 OP executed the agreement deed agreeing to sell the site No.135 situated at the above said proposed layout for a total sale consideration of Rs.8,25,000/-. As per the terms of the agreement deed complainant was required to pay the balance consideration of Rs.5,50,000/- on or before registration. The registration was to be done within 30 days from the date of BMRDA approval. The OP has not formed any layout and failed to fulfill its obligation in allotting the site and executing the sale deed. Hence complainant sought for refund, there was no response to the legal notice. Hence complainant approached this Forum for the necessary reliefs.
7. As against the case of the complainant the defence of the O.P. is that the conversion application filed by OP rejected by the Deputy Commissioner and BMRDA has not approved the layout, hence OP is unable to execute the sale deed cannot be accepted as a valid defence. Without there being any conversion order and sanction plan for the proposed layout OP has entered into agreement with complainant and made the complainant to part with advance amount of Rs.2,75,000/-. Further it is contended by OP that it is ready to execute the sale deed after obtaining conversion order and BMRDA approval. The complainant cannot be made to wait indefinitely till OP obtain the conversion order and BMRDA approval. Further defence of OP that till BMRDA approves the layout, Complainant cannot seek any relief is not sustainable.
8. Further it is contended by OP that it has refunded Rs.30,000/- cash to the complainant when he approached for refund and voucher will be produced along with evidence. But OP has failed to substantiate this defence. Hence in the absence of any material we are unable to accept the contention of OP that it has refunded Rs.30,000/- cash to the complainant. When OP was not able to get the conversion order and approval of the layout it could have been fairly refunded the amount to the complainant. Retention of amount for more than 4 years inspite of legal notice amount to deficiency in service, on the part of OP. We are satisfied that complainant is able to prove the deficiency in service on the part of OP. Under the circumstances, we are of the considered view that the complainant is entitled for refund of amount paid along with interest at 18% p.a. as compensation for mental agony and loss of returns from the amount paid as advance. Accordingly we proceed to pass the following
O R D E R
The Complaint is allowed in part. OP is directed to refund Rs.2,75,000/- along with interest at 18% p.a. from the date of respective payments till realisation and pay litigation cost of Rs.2000/- to the complainant.
This order is to be complied within four weeks from the date communication of this order.
Send the copy of this order both the parties free of cost.
(Dictated to the Stenographer and typed in the computer and transcribed by him verified and corrected, and then pronounced in the Open Court by us on this the 16th day of November 2011.)
MEMBER PRESIDENT
