COMPLAINTS FILED ON: 20.06.2011

DISPOSED ON:09.02.2012

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

9^TH DAY OF FEBRUARY-2012

  PRESENT:-  SRI. B.S. REDDY                       PRESIDENT

                      SRI. A. MUNIYAPPA                      MEMBER

COMPLAINT Nos.1116/2011, 1117/2011

O R D E R

SRI. B.S. REDDY, PRESIDENT

Both these complaints u/s.12 of the Consumer Protection Act of 1986 against the same Ops are by the same complainant seeking direction to execute registered sale deed in respect of allotted sites alternatively to pay compensation of Rs.20,00,000/-in each case on the allegation of  deficiency in service.

2. The brief averments made in the complaints are as follows:

Ops are engaged in formation of residential layout in and around Bangalore and selling sites formed in the layouts. OP1 is a Private Company represented by its Chairman and Managing Director. OP2 is the Director of OP1 and the Son of the Managing Director of OP1. In the year 2005, Ops published through various means of the communication that they are developing residential layout called “East of Eden” in Mayaganahalli Village, Near Bidadi, off Mysore Road and intending to sell fully developed sites to the general public. The complainant being attracted by the said publicity, approached OPs with an intention to get a fully developed the residential sites, Ops obtained an application from the complainant and admitted him as a member on 14.07.2005. Ops allotted sites bearing No.B-69 and H-48 to the complainant in the said residential layout. The complainant paid Rs.3,00,000/- by cheque dt.09.06.2005 and further sum of Rs.1,40,000/- on 14.07.2005 by cheque dt.07.07.2005 and another sum of Rs.3,00,000/- by cheque dt.05.01.2007 in all Rs.7,40,000/- to the Ops in respect of the site No.B69. Further the complainant paid an amount of Rs.4,00,000/- through cheques dt.12.05.2007 and another cheque for Rs.6,00,000/- of the same date 12.05.2007 total Rs.10,00,000/- in respect of site No.H-48. OP1 has executed agreement of sale in respect of both sites. As per Clause-15 of the agreement of sale Ops assured that they would complete the layout by the end of December-2008. As per Clause-22 of the agreement, the complainant is entitled to free Golf membership for the duration of the five years from the commencement of Golf course.

Ops have purchased lands in several survey numbers of Mayaganahalli Village in the name of 2^nd OP and obtained approval from the BMRDA for formation of the layout and got converted the lands. Ops developed the said layout called ‘East of Eden’ including the B-Block wherein the site bearing No.B-69 is allotted to the complainant. But, the Ops have failed to provide all the facilities and amenities as agreed by them, as per the terms of the agreement of sale executed. Ops also not provided the Golf course in the said layout though they have agreed to provide the same by the end of December-2008. The complainant approached Ops to buy the sites in the said layout with the hope that they would adhere to the terms of the agreement of sale and provide all the facilities and amenities as agreed by them including the Golf Course and the free membership for the same. Had the Ops provided the Golf course in the said layout, the sites allotted to the complainant would have now fetched very good price in the market, as such Ops are liable to make good the loss suffered by him due to non-providing of Golf course in the said layout. Ops have not so far registered the allotted sites and handed over physical possession of the same. The complainant has been ready to pay the balance sale consideration and get the registered sale deeds. Ops are selling sites to other persons at higher rates to earn huge money. Though the sites are available in the said layout, Ops have been willfully avoiding registration and handing over possession of the sites in favour of the complainant. Ops have no intention to register the allotted sites in favour of the complainant. At the current price it is impossible for the complainant to purchase an alternative sites, as is evident from the fact that the guidance value fixed by the Government in the Citi Greens layout of the Ops is Rs.1,000/- per sq.ft. and in the vicinity of Mayaganahalli Village is Rs.500/- per sq.ft. and the price of the sites in the market is normally much higher than the guidance value fixed by the Government. Ops who are bound to register the sale deed in respect of the sites allotted, have rendered deficiency of service by not registering the sites and also caused serious mental agony, loss, damages and inconvenience to the complainant. When the complainant visited the office of the Ops in the month of January-2011 he found out that they have shifted their office without giving any information. The registered letter dt.23.03.2011 was addressed to the Ops to fix a date for registration of the sites. OP2 though received the said letter, neither replied the same nor come forward to register the sites. Another registered letter dt.27.04.2011 was sent to the Ops, OP2 had received the same, the letter sent to the 1^st OP returned with a shara that ‘left the address. In spite of said two letters, Ops have not come forward to execute the registered sale deed in fvour of the complainant in respect of the sites. Thus the complainant felt deficiency in service and filed these complaints.

 3. On appearance OPs filed version contending that Ops shifted the office to the permanent accommodation i.e., City Greens Farms House. The allegations made in 3 to 5 of the complaint are admitted true and correct. It is stated that the State Government has announced that the very same land including course and also that of the City Green have notified for the formation of the township as per the government Order No.UDD/97/BMR/2006, to the extent of 4913  including the lands Mayaganahalli consisting of 8 villages. Thus the loss suffered by the complainant does not arise and it is not in the hands of OPs, as the land which the OP intended to develop will be acquired by the State Government. The said project will be taken up by the Bangalore Metropolitan Regional Development Authority. The copy of the brochure launched by Development Authorities produced. Hence there was no opportunity for the Ops to develop the lands which they had taken up for implementation of the project. Ops have given objection to the BMRD for Notification issued and it is objected that the lands have been developed by the Ops and sites have been formed and it is also represented that Ops have made commitments with several customers by taking advances for the developed sites and requested to drop the acquisition of the lands. The said objections are under the consideration and no final decision is taken in this regard by the BMRD Authorities. All these factual aspects are known to the complainant but they have suppressed material facts and filed the above complaint for wrongful gains. As the matter is pending before the BMRD Authorities and until and unless the said Authority takes a final decision in the matter, the Ops hands are tied up and the Ops have no say in the matter and not in a position to register sale deed and hand over the possession of the sites to the complainant. Ops have not committed any breach of contract or willful negligence and there is no deficiency of service as alleged by the complainant. Hence, it is prayed to dismiss the complaints.

4. The complainant, in order to substantiate complaint averments filed affidavit evidence and additional affidavit evidence and produced documents. The Chairman and Managing Director of Op1 filed affidavit evidence in support of the defence version.

5.The complainant filed Written Arguments. Arguments on both sides heard.

6.Points for consideration are:

Point No.1:-Whether the complainant proved the deficiency in service on the part of the OP2?

Point No.2:-If so, whether the complainant is entitled for the reliefs now claimed?

Point No.3:-To what order?

7.We record our findings on the above points are:-

     Point No.1:- Affirmative.

            Point No.2:- Affirmative in part.

            Point No.3:- As per final Order.

R E A S O N S

8. At the out set it is not in dispute that OP1 represented by its Chairman and Managing Director executed the deed of agreements dt.08.06.2007 to sell the sites bearing No.B-69 measuring 29 meters 14.5 meters for Rs.11,52,000/- and received the total initial advance sale consideration of Rs.7,40,000/-, in complaint No.1116/2011 and another site bearing No.H-48 measuring 50X80 feet for total consideration of Rs.10,00,000/- and received the entire consideration, in complaint No.1117/2011. As per the preliminary layout plan the layout is formed under the name and style of “East of Eden” by Ops the site numbers shown in these agreements are shown in the preliminary layout plan. The lands survey numbers in the deeds of agreement of sale deeds are shown stating that OP1 is the absolute owner of residential converted sites approved in Sy.No.28/2, 29/2, 29/4,29/10, 29/11 and 29/12 of Village Mayaganahalli, Bidadi Hobli, Ramanagar Taluk, Bangalore Urban District and OP1 is forming residential layout under the name and style, “East of Eden” as per BMRDA (which is in the process of getting approval) in the said lands. There is no dispute that the complainant has paid the entire sale consideration of Rs.10,00,000/- in respect of site bearing No.H48 but OP has not executed the sale deed and put the complainant in possession of the same, in spite of repeated requests and registered letters. In respect of site No.B-69 out of total cost of Rs.11,52,000/-, the complainant has paid Rs.7,40,000/-, Ops agreed to receive the balance consideration at the time of registration of the site. Both these sites are agreed to be sold by Ops at the rate Rs.250 per sq.ft.

            As per Clause-15 of the agreement of sale, Ops assured that along with other amenities they would develop Golf course and that it would be completed by the end of December-2008. As per Clause-22 of the agreement, it is stated that the owner of the site is entitled for free Golf membership for the duration of 5 years from the commencement of Golf course. Ops have not provided the Golf course in the said layout. In spite of forming the layout Ops are avoiding to execute the registered sale deeds in respect of both the sites. We are unable to accept the defence of the Ops that these lands on which the layout is formed are under acquisition proceedings by BMRDA and the objections filed by the Ops to the acquisition proceedings are still pending. Ops have not produced any material to show that the lands on which the layout is formed are under acquisition and objections are filed by the Ops. In case if any acquisition proceedings are pending in respect of these lands nothing prevented the Ops to produce the Notification issued for acquisition of these lands and the copies of the objections filed for the acquisition.

            The complainant has produced the copy of the sale deed dt.28.08.2010 executed by OP2 in respect of site No.79 formed out of Sy.No.29/2 of Mayaganahalli Village, measuring 5,000/- sq.ft for Rs.12,50,000/- in favour of one Sri Hari Jallapuram. In the said sale deed it is shown that the land has been converted as per conversation order dt.29.06.2006 issued by Deputy Commissioner, Ramanagar, Sub Division, Ramanagar. It is also shown that after obtaining the conversion order Ops have formed residential layout as per BMRDA No.LAO/22/2006-07 dt.17.06.2006. On the basis of this sale deed it becomes clear that Ops have formed the approved layout after obtaining the conversion order in respect of these lands. In case if these lands were under acquisition proceedings. OP2 could not have executed the sale deed on 28.08.2010. The lands are purchased in the name of OP2 by his father who is the Chairman and Managing Director of OP1. Because of the hike in properties value, in order to get more value by selling the sites to others Ops are avoiding to execute the sale deeds in favour of the complainant. As per Clause-4d of the agreement, if the Ops fail to register the sites within 7 days from the date of BMRDA approval, they have agreed to pay penalty of 2% p.m. for the delayed period. The Ops have obtained the approval of the BMRDA on 16.06.2006 as per Annexure-D for formation of the layout. There was no any justifiable cause for the Ops to avoid execution of the registered sale deeds in favour of the complainant. The Government Order vide No.UDD/97/BMR 2006 dt.28.11.2006 produced by the Ops is only an order to constitute a documentation committee for the proposed project. But the same is not an order relating to land acquisition. The act of Ops in not executing the sale deeds in respect of the sites is deficiency in service on their part. The complainant is entitled for the relief directing the OPs to execute the sale deeds in respect of the sites. In the approved layout plan the dimension of the sites is only 50 X 80 feet, in the preliminarily layout plan the total area of site bearing No.B-69 was shown as 4608 sq.ft. The sites mentioned in the agreement deeds were shown in the preliminary proposed layout plan in the approved layout plan these site numbers are not mentioned. Therefore, Ops are to be directed to execute the sale deed in respect of 2 sites each measuring 50 X 80 feet in favour of the complainant in the approved layout formed. In the event of failure to execute the sale deeds, Ops are to be directed to refund the entire sale consideration received with interest at 24% p.a. by way of compensation from the respective date of payments, till the date of realization. Accordingly we proceed to pass the following:

O R D E R

The complaints filed by the complainant are allowed in part.

Ops are directed to execute the registered sale deeds in respect of two sites each measuring 50 X 80 feet formed in the residential layout in Sy.Nos.28/2, 29/2, 29/4, 29/10, 29/11 and 29/12 of Mayaganahalli Village, Bidadi Hobli, Ramanagar Taluk, Bangalore, Urban District on receipt of balance consideration of Rs.2,60,000/-in complaint No.1116/2011. The complainant has to bear the cost of registration including stamp duty.

In the event of failure to execute the sale deeds for any reasons, Ops are directed to refund an amount of Rs.10,00,000/- in complaint No.1117/2011 and Rs.7,40,000/- in complaint No.1116/2011 with interest at 24% p.a. from 08.06.2007 till the date of realization.

Ops to pay the cost of Rs.5,000/-in each case 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 to both the parties free of cost.

This Original order shall be kept in the file of the complaint No.1116/2011 and a copy of it shall be placed in other complaint.

(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 9^th day of February 2012.)

MEMBER                                                         PRESIDENT

Cs.