COMPLAINT FILED ON: 26.10.2009 <br /> DISPOSED ON: 21.07.2010<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 21ST JUJY 2010<br /> <br /> PRESENT:- SRI. B.S.REDDY PRESIDENT <br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI.A.MUNIYAPPA MEMBER <br /> <br /> COMPLAINT NO.2489/2009<br /> <br /> <br /> COMPLAINANTS <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> 1. Sri. Ramachandra Rao M.P.,<br /> S/o Late Sri. M. PadmanabhaRao,<br /> Aged about 54 years,<br /> R/at G.F. – 2, <br /> Chaithra Shree Enclave,<br /> 1st Main, 2nd Block, <br /> T.R. Nagar,<br /> Bangalore – 560 028.<br /> <br /> 2. Smt. Kalpana R. Rao,<br /> W/o Sri. Ramachandra Rao,<br /> Aged about 54 years,<br /> R/at G.F. – 2, <br /> Chaithra Shree Enclave,<br /> 1st Main, 2nd Block, <br /> T.R. Nagar,<br /> Bangalore – 560 028.<br /> <br /> Advocate: Sri. S. Nagaraja<br /> <br /> V/s.<br /> <br /> OPPOSITE PARTY M/s Presidency Elite,<br /> Registered Office at No.895/1,<br /> “Skanda”, 14th Cross,<br /> Mahalakshmi Layout,<br /> Bangalore – 560 086.<br /> <br /> Rep: by its Managing Director.<br /> <br /> Advocate: Sri C.P.Dhananjaya<br /> <br /> O R D E R S<br /> <br /> SRI. B.S.REDDY, PRESIDENT<br /> <br /> The complainants filed this complaint u/s. 12 of the C.P. Act of 1986, seeking direction against Opposite Party (herein after called as OP) to refund an amount of Rs.4,32,000/- together as Rs.1,44,000/- as 1/3rd of the advance amount as buy back amount together with interest at 18% p.a. and to pay compensation of Rs.50,000/- on the allegations of deficiency in service on the part of the OP. <br /> <br /> 2. The case of the complainants to be stated in brief is that: <br /> <br /> The complainants being the husband and wife entered into an agreement to purchase a site No.352 for a total consideration of Rs.12,96,000/- and paid advance amount of sale consideration of Rs.4,32,000/- on 14.03.2008 and got the sale agreement deed executed from OP. OP failed to keep up the terms and assurance made at the time of agreement deed and execute the sale deed. The legal notice was issued on 04.03.2009, OP sent the reply notice stating that they have to get conversion order and sanctions from the concerned authority. OP has made wrong assurance and suppressed the facts and truth with malafide intention, while receiving advance sale consideration. OP failed to keep up the promise and assurance made to execute the sale deed, the same is deficiency in service on the part of the OP. Inspite of repeated requests and demands to refund the amount with interest OP failed to refund the amount. Therefore the complainants claims refund of the amount with Rs.1,44,000/- as liquidated damages at 1/3rd of the advance amount as buy back amount with interest. <br /> <br /> 3. On appearance, OP filed version admitting that the complainants entered into an agreement of sale on 14.03.2008 in respect of site No.352 and paid advance sale consideration of Rs.4,32,000/-. It is denied that OP has undertaken to refund the advance sale consideration with 1/3rd of the advance amount as buy back amount. It is stated that OP informed the complainants that the project was incomplete because of not getting the conversion order from the concerned authority; due to global economic crises and also because of present financial crises and global depreciation. The act of the OP is not intentional one, but a bonafide reasons. OP has not committed any deficiency in service. OP is ready to give the alternative sites in the layout formed at ‘M/s Royal County’ or ‘M/s Royal Orchids’ in Mysore Taluk and District. If the complainants is not interested in alternative sites; OP is ready to return the booking amount. The complainants filed the complaint only to harass the OP, to make wrongful gain and to cause wrongful loss to OP. Hence it is prayed to dismiss the complaint. <br /> <br /> 4. In order to substantiate the complaint averments, the first complainant filed affidavit evidence. The partner of OP filed affidavit evidence in support of the defence version. <br /> <br /> 5. Arguments heard on both sides. Points for our consideration are: <br /> <br /> Point No.1:- Whether the complainants proved the <br /> deficiency in service on the part of <br /> the OP?<br /> <br /> Point No.2:- Whether the complainants are entitled<br /> for the reliefs now claimed?<br /> <br /> Point No.3:- To what Order?<br /> <br /> 6. We record our findings on the above points are:<br /> <br /> Point No.1:- Affirmative. <br /> Point No.2:- Affirmative in part. <br /> Point No.3:- As per final Order.<br /> <br /> R E A S O N S<br /> <br /> 7. At the out set it is not at dispute that the OP entered into an agreement to sell site No.352 formed in the layout called as ‘Presidency Elite’ for total consideration of Rs.12,96,000/- and received advance sale consideration of Rs.4,32,000/- on 14.03.2008 from the complainants and executed an agreement of sale in favour of the complainants. OP failed to execute the sale deed within 2 months from the date of agreement deed on one or the other pretext and ultimately legal notice was issued on 04.03.2009, for that reply was sent by OP stating that they could not get the conversion order and layout plan sanctioned. <br /> <br /> 8. The deed of agreement of sale provides the terms and conditions. As per clause – 2 of the agreement deed OP as a seller has undertaken to buy back the plot with appreciation of 1/3rd value on the booking amount, after 6 months from the date of the receipt of the amount paid at the time of booking of plot. OP has admitted the fact that no layout has been formed and there is no conversion order to form the layout in respect of the site agreed to be sold to the complainants. The complainants cannot be compelled get the sale deed executed in respect of alternative sites stated to have been formed at ‘M/s Royal County or M/s Royal Orchids’ at Mysore Taluk and District. OP has come forward to refund the amount in case of, the complainants are not willing to take the alternative sites. The complainants are justified in claiming the refund of advance sale consideration. The failure on the part of OP in refunding the amount inspite of receipt of demand notice is nothing, but deficiency in service on its part. However without there being approved layout and formation of any sites executing the deed of agreement and receiving advance sale consideration of Rs.4,32,000/- also amounts to unfair trade practice and deficiency in service. Under these circumstances we are view that the complainants proved deficiency in service on the part of the OP. In view of the same the complainants are entitled for the refund of the advance sale consideration with interest at 12% p.a. on the advance amount. Accordingly we proceed to pass the following:<br /> <br /> O R D E R<br /> <br /> The complaint filed by the complainant is allowed in part. <br /> <br /> OP is directed to refund advance sale consideration of Rs.4,32,000/- with interest at 12% p.a. from 15.09.2008 till the date of realization with litigation cost of Rs.2,000/- to the complainant.<br /> <br /> This order is to be complied within four weeks from the date of its communication. <br /> <br /> Send copy of this order to both the parties free of costs. <br /> <br /> (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 21st day of July 2010.) <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> Snm:<br />