BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 02^nd DAY OF JANUARY 2016

O R D E R

SRI. P.V SINGRI, PRESIDENT

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 allot a residential site measuring 60x90 feet totally measuring 5400 square feet’s in Suthahalli village, Sasalu Hobli, Doddaballapura Taluk, Bangalore District or in the alternative direct the OP to refund her a sum of Rs.3,50,000/- together with interest @ 24% p.a and compensation of Rs.50,000/- with costs.

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

The OP is a Company registered under the companies Act, 1956 and carrying on the business in the real estate deals, purchase and sale of lands, formation of residential layouts, township and other allied business activities.  The OP advertised a scheme for developing and the formation of residential layout in the name and style of “Gravity Golf Link” in Suthahalli village, Sasalu Hobli, Doddaballapur Taluk, Bangalore District.  Based on the colourful assurance made by the OP, she agreed to purchase a residential site measuring 60x90 feet, totally measuring 5400 square feet’s in the said layout for a total consideration of Rs.3,50,000/-.  The complainant and OP entered into an Memorandum of Understanding dated 11.10.2009.  The complainant on the assurance given by the OPs, paid the said sum of Rs.3,50,000/- by way of cheque dated 16.09.2009 drawn on Vijaya Bank, Cox town Branch, Bangalore for which OP has issued a receipt dated 15.09.2009.  The OP failed to handover the developed residential site to the complainant within time stipulated in the Memorandum of Understanding dated 11.10.2009.  The OP went on protracting the matter on one or the other pretext.  In the mean time the OP shifted their office from Malleshwaram to Jayanagar office without intimating the complainant.  The complainant with great efforts could trace the office at Jayanagar and demanded allotment of said site in terms of Memorandum of Understanding dated 11.10.2009.  The OP failed to allot the site despite repeated visits and requests made by the complainant.  The OP sent a letter dated 19.04.2013 to the complainant stating that they are not able to form the layout in Suthahalli village, Sasalu hobli, Doddaballapura Taluk, Bangalore district due to technical reasons and offered to give a residential site in some other layout developed by them measuring 40x60 feet situated in survey No.92 part of old survey No.77 in Majara Hosahalli village, Tubagere Hobli, Doddaballapura Taluk, Bangalore district.  The complainant was not happy to receive the same.  Therefore, compelled to approach this Forum for obtaining residential site as mentioned in the MoU.

For the aforesaid reasons, the complainant prays for an order directing OP to allot her a site measuring 60x90 feet’s totally measuring 5400 square feet’s in Suthahalli village, Sasalu hobli, Doddaballapur Taluk, Bangalore District or in the alternate direct the OP to refund her the consideration amount of Rs.3,50,000/- together with interest @ 24% p.a from the date of payment till the date of realization together with compensation of Rs.50,000/- for causing mental agony and hardship with costs.

3. In response to the notice issued OP appeared through their advocate and filed their version contending in brief as under:

That the complaint filed on the basis of alleged Memorandum of Understanding dated 2009, without any other cause of action is hopelessly barred by limitation and the same is liable to be dismissed on this ground alone.  The complainant is not a ‘consumer’ as defined under the Consumer Protection Act.  Therefore, cannot maintain the present complaint.  The OP initially conceived a project by acquiring certain lands in Suthahalli and in this regard engaged the services with one Ravi and has entered into certain documents.  However, after taking huge amount, the said Ravi informed the OP that the lands in question have been allotted to Schedule Caste and Schedule Tribes and the same requires necessary permission from the authorities concerned.  The OP was shocked to know the same.  The OP cannot deal with the said property without prior permission of the competent authority and the whole transaction will be illegal and void U/s.4 & 5 of the Karnataka Schedule Caste and Schedule Tribes (Prohibition of Transfer of Certain Land) Act, 1978.  Thus, the OP refused to accept the land in question and sought for refund of the amounts.  Though initially the said Ravi had sent certain documents purportedly General Power of Attorney etc., the OP bonafidely believing the same to be true has advertised about his proposed project and certain individuals who wanted to invest in the project for better returns have voluntarily paid certain amount.  The complainant appears to be one of such investor approached the OP voluntarily without any kind of promise/assurances from OP for such investment in their project, paid initial amount of Rs.3,50,000/- for allotment of plot in the proposed property to be acquired by OP.  In this regard, an MoU dated 11.10.2009 appears to have been entered into between OP and the complainant.

Admittedly except payment of Rs.3,50,000/- the complainant has not made any other payments and in any event since the project in question did not commence for want of proper land, the entire project was dropped.  The complainant is aware of the same and the OP offered an alternative site in Majrahosahalli, which is far nearer to Bangalore city than the above mentioned land in question and on a revised price, in view of increasing cost price for land acquired by OP, for the reasons best known the complainant protracted the same for more than 3 years and now has filed this false complaint.  The complainant is not entitled to the relief sought by her even as per the terms of MoU between the parties, the OP is not liable to pay any interest or compensation.  Without prejudice to the aforesaid contention and in view of the complainant’s non co-operation, the OP presumes that the complainant is not interested for alternative site offered by OP even way back in 2009 and not in 2013 as falsely claimed by the complainant on the basis of a forged letter.  Liability if any shall be restricted to payment of the amount after deducting 30% and in view of non-payment of further instalment by the complainant, she is not entitled for any refund in terms of the MoU.  The nature of allegations involves complicated questions of law and facts which requires to be tried only by Civil Court in a full-fledged trial.  The complainant has no cause of action to file the present complaint and the cause of action stated therein is illusionary.  The complaint is barred by limitation.  The OP is not liable to pay any compensation much less to Rs.50,000/- as demanded by the complainant.

For the aforesaid reasons, the OP prays for dismissal of the complaint.  

4. On the rival contention of both the parties, the points that arise for our determination in this case are as under:

        5. The complainant to substantiate the allegations made in the complaint filed her affidavit evidence in lieu of oral evidence.  OP filed the affidavit evidence of one N.C Surya, Director and Authorised signatory of OP in support of averments made in the version.  Both parties have submitted their written arguments.

6. Perused the allegations made in the complaint, the averments made in the version, the sworn testimony of complainant as well as OP, various documents filed by both sides including agreement of sale and other materials placed on record.

7. Our answer to the above points are as under:

REASONS

8. The complainant in her affidavit evidence reiterated the allegations made in the complaint and stated that based on the colourful assurances by the OP, she entered into an agreement to purchase a site measuring 60x90 feet totally measuring 5400 square feet’s in a residential layout to be developed and formed by OP at Suthahalli village, Sasalu hobli, Doddaballapur Taluk, Bangalore District for a total consideration of Rs.3,50,000/-.  She further states that, the OP entered into an Memorandum of Understanding dated 11.10.2009.  She paid the said sum of Rs.3,50,000/- by way of cheque dated 16.09.2009 drawn on Vijaya Bank, Cox Town Branch, Bangalore for which the OP has also issued a receipt for the said sum.  The complainant further claims that the OP agreed and undertook to complete the formation of the said residential layout including villa plots project by carving out individual sites within two years from the date of conveyance to land use.  The complainant alleges that since OP failed to form the layout within time stipulated in the agreement she was made run post to pillar requesting the OP to execute the registered sale deed in terms of MoU and handover possession of the site.  However, the OP failed to complete the formation of the layout and execute the registered sale deed in terms of agreement of sale.

9. The complainant further alleges that when she was persuading the OP for execution of the sale deed continuously and time and again, she received a letter dated 19.04.2013 from the OP stating that they are not able to form the layout in Suthahalli village, Sasalu Hobli, Doddaballapur Taluk, Bangalore District due to certain technical problems and offered her to give a residential site in some other layout developed by them measuring 40x60 in survey No.92 part of old survey no.77 situated in Majara Hosahalli Village, Thippur Panchayat, Doddaballapur Taluk.  However, she was not willing to accept the alternative site which was lesser in dimension and not in the location as mentioned in the Memorandum of Understanding.  The OP in their version initially did not admit the execution of Memorandum of Understanding dated 11.10.2009.  However, in the later part of their version half heartedly admitted the execution of the said MoU and receipt of Rs.3,50,000/- from the complainant.  The OP took up a contention that the complainant except paying the initial amount of Rs.3,50,000/- failed to pay the remaining instalments.  Therefore, she is not entitled for refund of the entire amount of Rs.3,50,000/- but the same shall be restricted deducting an amount equivalent to 30% in pursuance of clause-9 of Memorandum of Understanding.  It is further contended by the OP that they offered an alternative site to the complainant way back in 2009 but she did not prefer to take the alternate site, therefore an amount equivalent to 30% is liable to deducted from the money paid by her.

10. It is pertinent to note that the amount of Rs.3,50,000/- paid by the complainant is total consideration amount agreed between the parties as could be seen from the recital in clause-4 of the Memorandum of Understanding entered between the complainant and OP.  When the total sale consideration itself is Rs.3,50,000/-, therefore the question of the complainant paying any further instalments does not arise at all.  Therefore, we are of the opinion that the contention of OP that the complainant failed to pay the balance amount in accordance with the MOU is false, baseless and also mischievous.  The OP took up a contention that the complainant was informed to take alternate site in the year 2009 itself.  However, OP did not produce any documentary or credible oral evidence to substantiate that they offered alternate site to the complainant in the year 2009.  In absence of any credible evidence, it cannot be believed at all that the OP offered alternate site to the complainant way back in the year 2009, especially in view of letter dated 19.04.2013 written by the Director and Authorised Signatory of OP to the complainant.

11. The OP in their version as well as in their sworn testimony took up a contention that the copy of the letter dated 19.04.2013 produced by the complainant is a concocted document and the same has not been issued by OP and also not signed by either Director or Authorized Signatory of OP.  It is further alleged by the OP that the complainant has forged the signature of Director/Authorized Signatory of OP only to bring the complaint within time.  It is categorically contended that the signature appearing on the said letter does not belong to the Authorized Signatory of OP.  As already stated above, absolutely there is no credible evidence to believe that the OP offered an alternate site to the complainant way back in the year 2009.  The complainant approached this Forum only when she received the above said letter dated 19.04.2013 from the OP.  Till the receipt of the said letter, the complainant who was not aware of any technical problem faced by OP in forming layout as promised by them was hoping to get a site as mentioned in the Memorandum of Understanding in the limits of Sasalu village.  We do not find any reasons for the complainant to forge or concoct the above said letter dated 19.04.2013.  Though it is contended by the OP that the Director/Authorized Signatory has not signed the said letter but the bare comparison of Director/Authorized Signatory appearing on the said letter dated 19.04.2013 with that of the signature of very same Director/Authorized Signatory appearing on version, affidavit and other documents placed on record goes to show that the signature appearing on the said letter dated 19.04.2013 is of Director/Authorized Signatory of OP by name N.C Surya who has signed the power, version as well as the affidavit evidence.  Thus, it is evident that the OP has taken up this contention only to contend that the complaint is barred by limitation.  The conduct of OP in making this false allegation exhibits the dishonest intention of OP in cheating the complainant who is a senior citizen and more than 75 years of age and helpless woman.  Though the OP alleges that they could not form the layout in about 300 acres of land in Suthahalli village, Sasalu hobli, Doddaballapura Taluk due to certain technical problems they did not intimate the complainant about the same till 19.04.2013, on which day they addressed a letter to the complainant regarding their inability to form the layout as agreed by them in Suthahalli village, Doddaballapura Taluk due to certain technical problems.  If at all the OP had informed the complainant about their inability to form the layout in the limits of Suthahalli village in 2009 as contended by them then why the same should find place in the said letter dated 19.04.2013.  The said letter written by OP makes it abundantly clear that the OP for the first time informed the complainant about their inability to form the layout in Suthahalli village.  It is also not the case of the OP that they are not able to form the layout in any other lands in the limits of Suthahalli village other than the lands which were said to be allotted to the people belonging to schedule caste/schedule tribes community.

12. Moreover, the OP has offered a smaller site than agreed under the Memorandum of Understanding in the layout formed in the limits of Majara Hosahalli in Doddaballapura Taluk.  Therefore, the complainant is justified in refusing the alternate site.  The complainant was lured to purchase the site in the layout to be formed in the limits of Suthahalli village as per the terms and conditions of MoU.  In para-3 of MoU the OP has mentioned that they have already negotiated for the development and improvement of lands by converting the agricultural lands into residential use with the owners of the lands situated at Suthahalli village, Doddaballapura Taluk.  Further in clause-2 of the Memorandum of Understanding the OP confirms and affirms that they would apply to the Special Deputy Commissioner or any other authority for conversion of the land use from agricultural use to non-agricultural residential use and they shall obtain such permission within 12 months from the date of execution of the said MoU.  Anybody who reads the above mentioned para-2 and clause-2 of the MoU would believe that the OP has already taken over possession of the lands and has initiated steps for conversion of lands for residential use.  By incorporating the above paragraphs, the OP has made the complainant to believe that they have already taken possession of the said lands and thereby made her to part with huge sum of Rs.3,50,000/-.  This conduct of OP also amounts to cheating punishable U/s.420 of Indian Penal Code.  Therefore, the complainant if so advised can take steps to prosecute the OP for an offence punishable U/s.420 of Indian Penal Code.

13. The OP has failed to form the layout as promised by them and as undertaken by them in the MoU dated 11.10.2009 and also failed to inform the complainant about their inability to form the layout as agreed by them in the limits of Suthahalli village, Sasalu Hobli, Doddaballapura Taluk and thus have made her to run to their office time and again to enquire about the progress in formation of the said layout.  The OPs are guilty or suppressing their inability to form the layout in the limits of Suthahalli village.  The OP now instead of fairly admitting the mistake are trying to pass the blame on the complainant and are trying to dupe her.  The OP if at all were unable to form the layout in the limits of Suthahalli village they ought to have refunded the said amount to the complainant immediately.  However, instead of refunding the amount, the OP is making every effort to dupe the complainant of her hard earned money and thereby make wrongful gain for them.  The OP is not all justified in retaining the said huge amount of Rs.3,50,000/- with them all these years.  As already pointed out in the above paragraphs, the conduct of OP apart from being a gross deficiency in service amounts to cheating punishable U/s.420 of Indian Penal Code.  Therefore, we are of the opinion that OP has to be directed to refund the said sum of Rs.3,50,000/- to the complainant together with interest @ 18% p.a from the date of receipt till the date of realization.  Further, the conduct of OP undoubtedly must have put the complainant to lot of mental agony, hardship and inconvenience.  Certainly the complainant would not be able to get a site of similar measurement in and around Suthahalli village for the same price now, in view of steep hike in the price of the land.  Therefore, we are of the opinion that the OPs have to be directed to pay compensation of Rs.1,00,000/- to the complainant for gross deficiency in service and for causing untold hardship and mental agony to the complainant apart from litigation cost of Rs.5,000/-. 

14. The order could not be passed within the stipulated time due to heavy pendency.

15. 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.  The OP is directed to refund a sum of Rs.3,50,000/- to the complainant together with interest @ 18% p.a from the date of receipt till the date of realization.  Further OP is directed to pay compensation of Rs.1,00,000/- to the complainant for deficiency in service together with litigation cost of Rs.5,000/-.

OP shall comply the order passed by this Forum within six weeks from the date of this order.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 02^nd day of January 2016)

MEMBER                           MEMBER                     PRESIDENT

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Witnesses examined on behalf of the complainant dated 08.10.2013.

1. Smt.Pushpa Shetty,

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party dated 07.11.2013.

1. Sri.N.C Surya    

Document produced by the Opposite party:

MEMBER                            MEMBER                    PRESIDENT

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