COMPLAINTS FILED ON: 30.08.2010

DISPOSED ON: 24.01.2011

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

DATED THIS THE 24^TH JANUARY 2011

  PRESENT:-  SRI. B.S. REDDY                             PRESIDENT

                     SMT. M. YASHODHAMMA               MEMBER

                     SRI. A. MUNIYAPPA                         MEMBER         

COMPLAINT Nos.2031, 2032 & 2033/2010

O R D E R

SRI. B.S.REDDY, PRESIDENT

These are the complaints filed U/s. 12 of the Consumer Protection Act of 1986, by the respective complainants seeking direction against Opposite Party (herein after called as O.P) to execute the sale deed in respect of residential sites or to refund the advance amounts paid with interest and for compensation towards mental agony on the allegations of deficiency in service on the part of the OP. 

As the OP in all these complaints is common, the reliefs claimed is identical, in order to avoid the repetition of facts and multiplicity of reasonings, these complaints stand disposed of by this common order.

2.      The case of the complainants to be stated in brief is that:

OP is a Private Limited Company, constituted for the purpose of formation of layout and to allot the sites to its members. OP invited applications from interested persons to become the members for the project known as “Shiviri Jasmine” phase-I, situated at Hirandalli Village in survey No.39/1 and sub-numbers of Bidarahalli Hobli, Bangalore East Taluk and issued brochure in respect of the said project. After verifying the brochure and seeing the website, the complainants became the members of the OP company and paid sum amount as initial advance and OP executed an agreement of sale agreeing to allot the sites and execute the sale deed. OP failed to execute the sale deeds inspite of several requests and demands. OP issued cheques towards refund of the amount paid in favour of the complainants, but the cheques were dishonoured. The complainants got issued legal notices calling upon the OP to execute the sale deed, alternatively to refund the advance amount. OP has not replied for the said notices. The complainants undergone lot of mental pain and suffered financial loss on account of OP’s failure to execute the sale deed or to refund the advance amount paid. The details of the amounts paid, the date of agreement deed, site number, amount paid and the total amount claimed is as shown in the below chart:

          The complainants felt deficiency in service on the part of the OP. Hence these complaints.

3.      On appearance, OP filed versions with identical contentions. It is contended that the complainants are not members of the company and there is no provision to become members of the company. It is stated that OP proposed to acquire land at Hirandahalli Village, Bidarahalli Hobli, Bangalore East Taluk in the name of the company for its own use and to achieve the object of the company. OP proposed to acquire more than 60 acres of lands from its original land owners and in this regard OP has entered into an agreement of sale with original land owners to procure the same. During that time the complainants approached and agreed to enter into a provisional sale agreement to purchase a site in the said property even though the OP has not proposed to form sites over the said properties. It is denied that OP promised complainants that they are planning to develop residential sites and the same will be allotted to the members who have applied for the sites. The complainants have not become the members of OP and they have not submitted any applications. The complainants themselves approached OP and agreed to purchase sites subject to the terms and conditions; the provisional sale agreement is purely an agreement to purchase with terms and conditions as may be agreed under the final agreement. The complainants themselves failed to keep up their promises and pay the balance sale consideration amount under the provisional sale agreements. The complainants violated terms and conditions of the provision of sale agreement. The matter is civil in nature to be adjudicated before the trial court. There is no undertaking, promise and assurance to the complainants by OP as builder / developer to provide any services. The complainants forcibly and with the help of goondas have obtained cheques towards refund of amounts keeping the OP in threat to life. The complainants failed to full fill their obligations in terms of the provisional agreement of sale, they are not entitled for refund of the advance amounts and the same is forfeited. It is denied that the complainants caused legal notices to OP. Thus it is prayed to dismiss the complaints with exemplary costs.        

4.      In order to substantiate the complaint averments, the respective complainants filed their affidavit evidence. The Managing Director of OP filed affidavit evidence in support of the defence version. Arguments on complainants side heard. OP filed written arguments. Points for consideration are:

Point No.1:- Whether the complainants proved the

                   deficiency in service on the part of the OP?

     Point No.2:- Whether the complainants are entitled for

                  the relief’s now claimed?

     Point No.3:- To what Order?

5.      We have gone through the pleadings of the parties; affidavit and documentary evidences, written arguments filed by OP. We record our findings on the above points:

Point No.1:- Affirmative

Point No.2:- Affirmative in part

Point No.3:- As per final Order.

R E A S O N S

6.      At the outset OP is not disputing fact that the complainants have paid the advance amount as shown in the above chart for having booked the sites and execution of the provisional agreement deeds. We have gone through the terms of the agreement deeds executed by OP in favour of the complainants and also the brochure issued. As per the terms of the agreement, the complainants agreed to pay the balance of 25% of sale consideration within 15 days from the date of BDA plan approval and remaining consideration at the time of registration of the sale deeds. Further OP has agreed in case of failure to form a layout with BDA plan approval by 30.07. 2008; to refund the advance received with 12% interest. OP has not produced any material to prove that it has acquired any land and formed layout with due approval of statutory body. Without acquiring any land OP has issued the brochure and executed the agreement deeds allotting sites in favour of the complainants. When the complainants came to know that OP without having any land made them to part with huge amount as an advance demanded for refund of the amounts. At that point of time OP has issued post dated cheques towards refund of the amount and has made endorsement on the agreement deeds for having issued the cheques towards refund of the amount with 12% interest. The cheques issued by OP were dishonoured for want of funds. Thereafter legal notice was issued demanding to execute the sale deed after receiving the balance consideration or to refund the amount received. For the said legal notice OP has not replied. There is no merit in the contention of OP that it was only a provisional agreement entered into with regard to the sites, the terms and conditions were agreed to be settled at the time of final agreement to be executed. The terms and conditions of the provisional agreement deeds clearly goes to show that OP assured complainants while receiving the advance consideration, to form a layout and allot the sites after due approval of the BDA. Further the story of the OP that the complainants by threat obtained post dated cheques cannot be accepted. On all the agreement deeds OP has made an endorsement for having issued the cheques towards refund of the amount with interest at 12%. If at all the complainants obtained these cheques under the threat, nothing prevented OP in lodging police complaint. OP has not filed any police complaint. Therefore the defence set up by OP is only for defence sake without there being any merit. Failure of OP in forming the layout or refund of the amount received amounts to deficiency in service on the part of the OP. The complainants are entitled for refund of the amounts paid as advance sale consideration, as no sites are available so as to direct the OP to execute the sale deed. Accordingly we proceed to pass the following:     

O R D E R

The complaints filed by the complainants allowed in part.

1. In complaint No.2031/2010 OP is directed to refund an amount of Rs.2,00,000/- with interest at 18% p.a. from the date of agreement till the date of realization and pay litigation cost of Rs.1,000/- to the complainant.

2. In complaint No.2032/2010 OP is directed to refund an amount of Rs.3,60,000/- with interest at 18% p.a. from the date of agreement till the date of realization and pay litigation cost of Rs.1,000/- to the complainant.

3. In complaint No.2033/2010 OP is directed to refund an amount of Rs.2,00,000/- with interest at 18% p.a. from the date of agreement till the date of realization and pay litigation cost of Rs.1,000/- to the complainant.

OP to comply the order within four weeks from the date of this order.

This original order shall be kept in the file of the complaint No.2031/2010 and a copy of it shall be placed in other respective files.

Send the copy of this order to 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 24^th day of January – 2011.)

PRESIDENT

MEMBER                                                      MEMBER 

  Snm: