BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

                               BENGALURU – 560 027.

DATED THIS THE 30^th DAY OF SEPTEMBER, 2022

CONSUMER COMPLAINT NO.1126/2016

PRESENT:

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER

Mr.Zubin Farokh Mavalwala.

S/o Mr.Farokh Mavalwala,

Aged about 42 years.                      ……          COMPLAINANT-1

Mrs.Rohini Mohan

W/o Mr.Zubin Farokh Mavalwala,

Aged about 39 Years,

Both are R/at P.O.Box No.686,

Dubai, UAE.

Today Bangalore,

No.347, 5^th Main, HAL III Stage,

Bangalore-560 075.……          COMPLAINANT-2

(Rep by Sri.B.Keshava Murthy, Adv).

V/s

M/s Expat Properties India Limited,

No.1, 2^nd Floor,

Sobha Pearl,

Commissariat Road,

Bangalore-560 025,

Rep. by its Managing Director,

Mr.Santhosh Shetty.                    ……      OPPOSITE PARTY-1

Rep by Sri.K.V.Mahesh., Adv.,

M/s Windsor Gardens Private Limited,

No.81, 36^th Cross,

Bangalore-560 041,

Rep.by its Managing Director

Mr.Srinivas Rao.                          ……      OPPOSITE PARTY-2

   Rep by Sri.S.Ramesh., Adv.,

//JUDGEMENT//

BY SRI.SHIVARAMA K, PRESIDENT

The complainant no.2 is the wife of complainant no.1.  They have filed this complaint U/s 12 of the Consumer Protection Act, 1986 seeking for a direction to the opposite party No.1 & 2 to execute the sale deed in favour of the complainants in respect of Plot No.I-18 at Phase-II of “Coral Country” or similar plot with same extent in Phase-II and alternatively to pay a sum of Rs.15,00,000/- to the complainants with interest at the rate of 18% p.a. and compensation of Rs.2,00,000/- towards mental agony, hardship and harassment caused to the complainants and a sum of Rs.50,000/- towards cost of the litigation and such other reliefs as this commission deems fit in the circumstances of the case. 

2. It is not in dispute that the opposite party no.2 is the developer and opposite party no.1 was its marketing agency.  It is not in dispute that the opposite party no.1 & 2 being the company represented by its Managing Director have assured the complainants that they would allot the plot No.1-18 measuring about 2,587 sq.ft in favour of the complainants. 

3. Since, the version filed by the opposite party no.1 & 2 were not within the statutory time, the same was rejected by the order of this Commission dt.19.04.2017 and 06.02.2017 respectively.  It is the further case of the complainants that the opposite party no.2 being the developer have lured the complainants to purchase the plot and as promised to the complainants they shall execute the sale deed within three years after development of the property.  Further even though entire consideration been received, the opposite party no.1 & 2 did not bother to execute the necessary conveyance in favour of the complainants.  Hence, the complainants got issued legal notice dt.28.09.2015 calling upon the opposite party no.1 & 2 to execute the sale deed.  In spite of that they did not execute the sale deed rather gave untenable reply dt.20.10.2015 and 29.10.2015 respectively.  Further, the opposite party no.1 & 2 have adopted unfair trade practice and collected entire sale consideration amount and did not allot the plot, thereby, there is deficiency of service on the part of the opposite party no.1 & 2.

4. To prove the case, the complainant No.2 has filed affidavit in the form of her evidence in chief and had produced documents.  The Managing Director of opposite party no.2 had filed affidavit in the form of his evidence in chief. 

 5.  Heard the arguments.

         6. The points that would arise for consideration are as under:

i)  Whether the activity of opposite party no.1 & 2 amounts to unfair trade practice within the meaning of Section-2(1)(r) of Consumer Protection Act, 1986?

ii) Whether there is deficiency of service on the part of the opposite party no.1 & 2 ?

    iii) Whether the complainants are entitled for the  

         compensation as sought ?

     iv) What order ?

    7.   Our findings on the aforesaid points are as under:

Point No.1 :  In affirmative  

Point No.2 :  In affirmative 

Point No.3 :  Partly in affirmative  

Point No.4 :  As per the final order for the following;

REASONS
 

8.POINT NO.1 & 2:- The complainant No.2 and opposite party no.2 have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief.  It is stated in the reply given by the opposite party no.2 that the value of the plot in question was at Rs.6,99,400/- and the complainant had paid only Rs.3,88,050/- and the balance was at Rs.3,11,350/- and further opposite party no.2 had addressed a letter to the complainants dt.26.07.2006 informing them that they have to pay Rs.35/- per square feet towards KEB, and other charges and another letter dt.11.08.2006 that Rs.20/- per square feet was fixed towards maintenance charges for 3 years.  According to the complainants, the opposite party no.1 informed that the cost of the site measuring 60 X 40 feet will be at Rs.4,80,000/- and Rs.25,000/- towards registration expenses.  Further the opposite party No.1 & 2 allotted plot No.I-18 measuring 2587 sq.ft.  Hence, the complainants had paid a total sum of Rs.5,42,400/-.  The complainants had produced receipt dt.08.12.2004 for having paid a sum of Rs.2,42,400/- and a receipt dt.17.01.2005 for having paid Rs.3,00,000/-.  Even though opposite party no.2 had received the entire sale consideration he did not make ready the layout and given possession of the plot in favour of the complainants.  Further, the oral and documentary evidence produced by the complainants have not been challenged by the opposite party No.1 & 2.  Therefore, the activity of the opposite party no.1 & 2 amounts to unfair trade practice, as they have falsely represented the complainants that they would provide the plot within 3 years.  Hence, the opposite party no.1 & 2 did not carry-out the assurance given.  Hence, there is deficiency in service on the part of the opposite party no.1 & 2.   Therefore, we answer point No.1 in affirmative.

9. POINT NO.3:- The complainants sought a direction to execute the sale deed.  The complainants did not produce any document that the property has been developed and permission with regard to the allotment has already been obtained from the concerned department.  The xerox copy of the layout plan said to have been issued by opposite party no.2 is not sufficient to prove that the sites are ready for allotment and opposite party no.2 can execute the sale deed.   Hence, the complainants are not entitled for the relief of a direction to opposite party no.1 & 2 to execute the sale deed.  Further, it is sought a direction to opposite party no.1 & 2 to pay a sum of Rs.15,00,000/- as compensation with interest at the rate of 18% p.a.   The receipts produced by the complainants in their evidence is sufficient to hold that the complainants in total have paid a sum of Rs.5,42,400/-, i.e., Rs.2,42,400/- was paid on 08.12.2004 and Rs.3,00,000/- on 17.01.2005.  Since the opposite party no.1 & 2 did not come forward to execute the sale deed in respect of the proposed plot, the complainants are entitled for return of the said amount.   The complainants claimed interest at the rate of 18% p.a.  We feel the said rate of interest is an exorbitant one.  Further, since from 2004 opposite party no.2 had kept the money of the complainants with them to have a wrongful gain.  Hence, the complainants are entitled for interest at the rate of 12% p.a. Hence, the opposite party no.1 & 2 shall pay Rs.5,42,400/- with interest at the rate of 12% p.a. from the date of payment been made.  Further, the complainants claimed a sum of Rs.2,00,000/- towards mental agony hardship and harassment. The complainants have waited for long time since from 2004 with an anticipation that the plot would be allotted.  The activity of the opposite party no.1 & 2 made the complainants to suffer mentally since the amount been paid.  Therefore, the complainants are entitled for a sum of Rs.50,000/- as compensation towards mental agony. Further, the complainants claimed a sum of Rs.50,000/- towards litigation.  We feel the complainants are entitled for a sum of Rs.10,000/- litigation expenses.  Accordingly, we answer this point partly in affirmative. 

10. POINT NO.3:-  In view of the discussion made above, we proceed to pass the following;

The complaint is allowed in part.

The opposite party no.1 & 2 are directed to pay a sum of Rs.5,42,400/- along with interest at the rate of 12% p.a. from the date of payment been made and a sum of Rs.50,000/- towards mental agony and a sum of Rs.10,000/- towards litigation cost. 

The opposite party shall comply the order within 30 days. In case, the opposite party fails to comply the order within the said period, the above said amount of Rs.60,000/- carries interest at the rate of 9% p.a. from the date of order till realization.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

Applications pending, if any, stand disposed of in terms of the aforesaid judgment.

  (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 30^rd day of September, 2022)                                            

•  REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA, K)    
•  
•  

Witness examined for the complainants side:

Smt.Rohini Mohan, the complainant has filed her affidavit.

Documents marked for the complainant side:

1.Copy of booking form issued by the opposite party no.1.

2. Copy of Brochure together with price list.

3. Copy of Layout Plan.

4. List of plots available.

5. Receipt dated 08.12.2004 for Rs.2,42,400/- and 17.01.2005 for Rs.3,00,000/-.

6. Copy of letter dt.26.04.2005 and 11.05.2005 issued by opposite party no.1 together with copy of GPA.

7. Copy of letter dt.30.01.2006 issued by opposite party no.2.

8. Copy of legal notice dt.28.09.2015.

9. Copy of reply notice dt.21.10.2015 issued by opposite party no.1.

10. Copy of reply notice dt.29.10.2015 issued by opposite party no.2.

Witness examined for the opposite party side: 

Sri.M.Srinivasa Rao, the opposite party has filed his affidavit.

Documents marked for the Opposite Party side:

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA, K)    
•