COMPLAINT FILED: 14.01.2011

DISPOSED ON: 23.08.2011

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

23^rd  AUGUST 2011

  PRESENT :-  SRI. B.S. REDDY                             PRESIDENT

                     SMT. M. YASHODHAMMA                MEMBER                   

                     SRI.A.MUNIYAPPA                           MEMBER

COMPLAINT NO. 91/2011

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 against the Opposite Party (herein after called as O.P) to pay Rs.3,06,720/- along with future interest at 18% p.a., compensation of Rs.50,000/- and cost on the allegations of deficiency in service on the part of O.P.

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

          Attracted by the offer made in the local news papers by the O.P.  Who is engaged in the business of forming layouts and residential sites in  and around Bangalore in their project known as “OMKAR RESIDENCY”, Complainant approached O.P. for a site.  O.P. entered into agreement of sale dated 15/9/2008 with the complainant to sell plot No.17, measuring 1200 Sq.ft in Sy.No.87, in Omkar Residency project situated at Kumbiganahalli Village, Jangamakote Hobli, Sidlaghatta Taluk, Kolar District.  The total consideration of the plot was Rs.4,32,000/-.  Complainant paid Rs.2,16,000/- advance by way of five cheques dated: 20/8/2008, 6/9/2008, 7/9/2008, 8/9/2008, & 9/9/2008 of Rs.40,000/- & 44,000/- each O.P. has encashed the cheques and issued two receipts dated 20-8-2008 for Rs.40,000/- & dated 5/9/2008 for Rs.1,76,000/-.  As per agreement O.P. failed to provide the documents relating to property for verification so as to obtain legal opinion and to obtain loan from the bank.  There was no development work.  O.P. has failed to implement the project within five months from the date of agreement and to execute the sale deed.  O.P. has failed to obtain approval from the competent authorities.  Complainant waited for longtime.  Then decided to cancel the booking on 12/11/2010.  Complainant issued request letter to O.P. for refund of amount of Rs.2,16,000/- with interest.  There was no response.  Complainant got issued legal notice dated:22-11-2010 requesting O.P. to refund the amount with 18% interest.  Notice returned as not claimed.  Hence complainant felt deficiency in service against O.P.  Under the circumstances she is advised to file this complaint against the OP for the necessary relief’s.

3.      On appearance O.P. filed the version admitting execution of agreement of sale.  OP contended that complainant failed to pay balance payment of Rs.2,16,000/- within five months from the date of agreement and failed to perform his part of contract.  Hence complainant has no locus standi to file this complaint.  There is no specific time for allotment of site. Under the consent of both the parties it is for a period of 3 years.  Complainant has filed this complaint within 3 years prematurely.  Formation of layout is under progress.  If complainant complies his part of contract OP is ready to allot the site after completion of layout works, which includes conversion and approval of layout plan etc., OP purchased the land bearing Sy.No. 89 to an extent of 2 acres and 15 guntas situated at Kumbiganahalli village, Jangamakote Hobli, Sidlaghatta Taluk, Kolar District.  under the Registered sale deed dated 12/8/2008 and having 11 acres 26 guntas through registered sale agreement dated 12/6/2008.  Copies of same are produced.  Work for formation of layout is under progress.  OP has not received any notice from the complainant.  Among other grounds OP prayed for dismissal of the complaint.

4.      To substantiate the complaint averments, complainant filed her affidavit evidence and produced brochure, receipts, agreement, correspondences, legal notice, written RPAD covers.  On behalf of OP Mr.Raghu partner of O.P.1 filed his affidavit evidence.  O.P. has not produced any document.  Heard argument from complainant  and  taken as heard from O.P. side.

5.      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 has Proved

                     the deficiency in service on the part of

                       the OPs?

    Point No. 2 :- If so, whether the complainant is

                    entitled for the relief’s now claimed?

     Point No. 3 :- To what Order?

6.      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 the above points are:

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

7.      At the out set it is not in dispute that complainant entered into agreement dated 15/9/2008 with O.P. to purchase a plot  bearing No.17, measuring 1200 sq. ft. situated at Sy.No.87 in OMKARA RESIDENCY project near Kumbiganahalli village, Jangamakote Hobli, Siddalagatta Taluk.   Kolar District.  The toal value of the plot was Rs.4,32,000/-.  It is also not in dispute that complainant paid Rs.2,16,000/- by way of five cheques of Rs.40,000/- and 44,000/- each.  OP encashed the cheques.  OP has issued two receipts dated 20-8-2008 for Rs.40,000/- and dated 5/9/2008 for Rs.1,76,000/-. Copies of the agreement and receipts are produced.  Now the grievance of the complainant is OP failed to implement the project till date.  OP failed to furnish the documents relating to property so as to obtain legal opinion to get the bank loan.  OP failed to obtain statutory approval from the competent authorities.  Hence complainant sought for refund by cancelling the booking on 12/11/2010.  There was no response to the refund request letter.  On 22/11/2010 complainant got issued legal notice requesting OP to refund the amount along with 18% p.a. interest notice returned as not claimed.  Hence complainant approached this forum for the necessary relief.

8.      As against the case of the complainant the defence of the OP is that there is no specific time for allotment of site.  Under the consent of both the parties it is agreed for a period of three years/ Formation of layout is under progress.  If complainant complies his part of contract OP is ready to allot the site, after completion of layout works, which includes conversion and approval of layout plan.  In the absence of any materials we are unable to accept the contention of OP that the layout work is in progress.  OP has not produced any documents in support of his defence that he has applied for conversion and approval of the layout.  The complainant cannot be made to wait indefinitely for approval of layout plan and for obtaining conversion.

9.      Further it is contended by the OP that OP has purchased land to an extent of 2 acres and 15 guntas in the same layout by way of sale deed dated 12/8/2008 and 11 acres and 26 guntas through registered sale agreement dated 12-6-2008.  We have perused the copies of the same.  The agreement dated 15/9/2008 entered between OP and the complainant is in respect of plot bearing No.17, situated in Sy.No.87 in Omkar residency project but the documents produced by OP are in respect of Sy.Nos.89,120,91/2, & 88/1 but not pertaining to Sy.No.87.  Hence the documents produced by OP are not helpful to OP.  OP has failed to produce any documents in respect of Sy.No.87.  Further the contention of the OP that OP has not received any notice from the complainant cannot be accepted, because complainant has produced three RPAD covers returned with on endorsement not claimed/information delivered. As per clause 11 of agreement OP has agreed to refund the amount with bank interest, if the approval of the plan is not sanctioned.  Inspite of receipt of request for refund dated 12/11/2010 and inspite of legal notice dated 22/11/2010.  OP has failed to refund the amount.  OP has failed to obtain conversion order and sanction plan to form the layout till date.  If OP is aware of the fact that it is unable to form the layout could have fairly refunded the amount.  Non refund of amount for almost three years, without forming the layout & executing the sale deed,  inspite of service of notice amounts to deficiency in service on the part of O.Ps.  Hence we are of the considered view that complainant is entitled for refund of amount paid with interest at 12% p.a. by way of compensation along with litigation cost of Rs.2000/-.  Accordingly we proceed to pass the following

O R D E R

          The Complaint is allowed in part.  O.Ps. are directed to refund an amount of Rs.2,16,000/-  with interest at 12% p.a. from 9/9/2008 till the date of  realisation and pay litigation cost of Rs.2000/- to the complainant.

This order is to be complied within four weeks from the date of communication.

          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 23rd August 2011.)

 MEMBER                MEMBER                 PRESIDENT                   

Rk.

rk.