COMPLAINT FILED ON: 25.01.2011 DISPOSED ON: 26.07.2011 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 26th JULY 2011 PRESENT:- SRI.B.S.REDDY PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI.A.MUNIYAPPA MEMBER COMPLAINT No.2049/2010 COMPLAINANT OPPOSITE PARTYS Mr T.R.Natarajan, S/o late T.K.Renga Iyer, Aged about 69 years, Residing at # 815, RBI Layout, 2nd Main, 10th Cross, J P Nagar, 7th Phase, Bangalore 560 078. Advocate: Mr.Harikrishna S Holla. V/s. M/s Vaishnavi Projects, 576 1st Floor, 30th Main Road, Opp. Foto Flash, Near Devegowda Petrol Bunk, BSK 3rd Stage, Bangalore 560 085. Represented by its Joint Managing Partner, Mr Purushotham V.S. Advocate: Gandhi Law Chambers. |
O R D E R SMT. M. YASHODHAMMA, MEMBER This is a complaint filed u/s. 12 of the Consumer Protection Act of 1986 by the complainant, seeking direction to the Opposite Party (herein after called as O.Ps) to refund Rs.3,37,000/- with interest at 24% p.a. and compensation of Rs.15 lakhs towards failure of OP to deliver the free and marketable title of site and to pay Rs.25,000/- compensation towards mental agony and harassment on the allegations of deficiency in service. 2. The brief averments made in the complaint are as follows. Complainant who is a retired person attracted by the offer made by OP who claims to be the developer, engaged in business of forming sites and residential layouts, entered into agreement with OP on 28-4-2007. Complainant invested his retirement benefits with OP by paying a sum of Rs.3,37,000/- towards purchase of a plot by way of 4 cheque dated 31-3-2007 to 25-4-2007. The OP has issued 2 receipts dated:25-4-2007 acknowledging receipt of the amount. OP agreed to sell Site No. 491 in PIONIDHI PRIDE LAYOUT situated at Marasandra Hoskote village, Harohalli Hobli, Kanakapura Taluk, Bangalore Rural District measuring 2400 Sq.fts for a total sale consideration of Rs.10,10,400/-. Complainant agreed to pay balance consideration on or before registration subject to OP obtains approval from BMRDA. On 5-6-2008 OP informed the complainant to get registered the property before 30-6-2008. Complainant requested OP to furnish the documents about the title and BMRDA approval. There was no response from OP even after 3 years from the date of agreement. Hence Complainant got issued legal notice on 10-5-2010 calling upon OP to refund the amount along with compensation. There was no response. Complainant lodged the complaint with police. Hence complainant felt deficiency in service against the OP under the circumstances he is advised to file this complaint for the necessary reliefs. 3. On appearance O.P. filed the version admitting the execution of agreement of sale infavour of complainant on 28-4-2007 to sell the site for a total sale consideration of Rs.10,10,400/- and admitted receipt of advance amount of Rs.3,37,400/- from the complainant. It is contended by OP that after obtaining the conversion order and layout approval from the concerned authority . OP has issued notice to the complainant. But complainant failed to contact OP in June 2008. Only in February 2010 complainant approached OP. Due to recession effect in world made very impact on the real estate business in India. There is no cause of action to the complaint. Among other grounds OP prayed for dismissal of the complaint. 4. To substantiate the complainant averments complainant filed his affidavit evidence and produced copy of the agreement dated: 28-4-2007, two receipts issued by OP, correspondences made by OP, legal notice, police complaint, RPAD receipts, on behalf of OP purushottam, joint Managing Partner of OP filed his affidavit evidence and produced copy of the proposed layout plan, conversion order, and copy of sale deeds executed infavour of other persons. Heard arguments from both sides. OP filed written arguments. 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 proved the deficiency in service on the part of the OPs? Point No.2:- If so, whether the complainant is entitled for the reliefs now claimed? Point No.3:- To what Order? 6. We have gone through the pleadings of the parties both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on: 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 with OP, developer dated:28-4-2007 and paid Rs.3,37,000/- by way of 4 cheques dated:31-3-2007 to 25-4-2007. OP has issued the receipts acknowledging the payment of amount. We have perused the copy of the agreement as well as receipts. OP has agreed to sell site No.491, in PIONIDHI PRIDE layout situated at Marasandra Hoskote Village, Harohalli Hobli, Kanakapura Taluk, Bangalore Rural District measuring of 2400 Sq.ft for a total consideration of Rs.10,10,400/-. Complainant has agreed to pay balance amount of Rs.6,73,400/- or registration which shall be done within 30 days from the BMRDA approval. On 5-6-2008 OP requested the complainant to get register the property on or before 30-6-2008. Complainant approached OP and requested for title documents and BMRDA approval. OP failed to furnish the same. Complainant caused the legal notice on 10-5-2010 calling upon Op to refund the amount with compensation. There was no response. Complainant lodged the complaint with Police Commissioner. There was no response. Hence complainant approached this forum. 8. As against the case of the complainant the defence of the OP is that after obtaining conversion order and approved layout plan, in June 2008 itself OP has informed the complainant to get register the site. But complainant failed to contact OP and failed to arrange the funds. Only in February 2010 complainant approached OP. OP has registered sites in favour of other customers. In support of its defence OP has produced the copy of the proposed layout plan, conversion order and copy of the sale deeds executed in favour of other persons by OP. We have perused the documents. The proposed layout plan, does not contain site No.491 which was agreed to be registered in favour of the complainant. Hence we are unable to accept the contention of OP that it is ready to execute the registered sale deed in favour of the complainant. OP has failed to produce the documents to show that site is readily available approved by the statutory authorities, free from encumbrances as on today. Inspite of service of legal notice OP has failed to respond to the complainant. 9. The defence of the OP that there is no cause of action to the complainant to file this complaint has no basis. Hence same cannot be accepted. OP having accepted the advance amount from the complainant unable to obtain BMRDA approval and unable to register the site and form the layout. This act of OP amounts to deficiency service on its part. OP having received the amount in the year 2007 itself has failed to obtain approval from BMRDA. As per clause 6 of the agreement OP is liable to refund the amount with bank rate of interest. If OP is aware of the fact that it cannot register the site it could have fairly refunded the amount to the complainant. Retention of amount by OP for more than four years without responding to the legal notice amounts to deficiency in service on the part of OP. We are satisfied that complainant is able to prove the deficiency in service on the part of OP. Compensation of Rs.15 lakhs and rate of interest claimed by the complainant is on higher side. Awarding of interest at the rate of 12% p.a. itself is a compensation. Under these circumstances we are of the considered view that complainant is entitled for refund of amount paid along with interest and litigation cost of Rs.2000/-. Accordingly we proceed to pass the following ORDER The Complaint is allowed in part. OP is directed to refund Rs3,37,000/- together with interest at the rate of 12% p.a. from 25-4-2007 till realisation along with litigation cost of Rs.2000/- to the complainant. This order is to be complied within four weeks from the date communication of this order. 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 26rd day of July 2011.) PRESIDENT MEMBER MEMBER that complainant was admitted to Bangalore Center for Bachelor of Business Administration from the academic year 2009-2010. Bangalore School of management was provisionally approved as an academic partner institution for running Bharthidasan University with a condition that the university team will visit the center at any time to check proper functioning of the centre. Further ordered that if any deficiency found, the provisional approval given to the center will be withdrawn and the students admitted will be transferred to an approved nearby institution. The copy of the order is produced. It is further contended by OP 1 that initially the complainant and two more candidates alone joined at Bangalore school of management centre for BBA course. As per practice contact school need not be conducted if the student strength is less than 10. Hence all the 3 candidates admitted at Bangalore school of management are directed to continue their study at Udaya centre. It is also informed that study materials are distributed through concerned study center. Complainant also known and admitted this fact. The standing committee at its meeting held on 12-12-2010 ratified to revise the syllabi for BBA course through distance made with effect from academic year 2009-2010 to enrich the potential of value based education. The Syndicate of Bharathidasan University at its meeting held on 18-2-2010 also approved the decision of SCAA. The copy of the minutes is produced. Further it is contended that resource persons were identified for preparation of materials in accordance with the syllabi approved by the syndicate. This is actual reason for bitter delay to dispatch the study materials for BBA course only. All these facts were informed to the complainant that when he came to university. As per the opinion of the academicians & the principles of natural justice there should be 60 days time between dispatch of study materials & date of commencement of examination. In this case study materials for newly framed syllabi has been prepared and sent to the co-coordinator Udaya Education Society, 18th Street, 18th Magadi, Vijayanagar, Bangalore on 3-2-2010 whereas examination commences from 29-4-2010. There was 85 days time available to the complainant. In the syllabi itself it is clearly informed the reference books and its author’s name available in the market. So the statement of the complainant that he discontinued the course due to non availability of study materials is not true. As and when complainant approached the University it is informed that the study materials are available at study centers. Complainant not approached the Udaya centre even though he knows the fact that the Study materials are available at study centers. Complainant himself declared to discontinue a from the course and also sent a lawyer notice. OP in its reply to legal notice informed the complainant that the fact of non a eligibility of the complainant for refund of fees paid by him. Copy of the letter is produced. Complainant declare to discontinue the course on 30-12-2009, after 85 days from the date of admission. As per decision of University Syndicate. Complainant is not eligible for refund. As per practice in Bharthidasan University the examination and time table intimation will be sent to the candidates one year after completion of course duration. The Complainant name is not deleted. Hence it is not surprise to the complainant. It is value added service of rendered by the university. Complainant purposely discontinue of the course even after reasonable time giving reasonable time between the dispatch of the study material to the study center and commencement of examination. Complainant was not approached study center. Among other grounds O.P.1 prayed for dismissal of the complaint. 4. Inspite of service of notice O.P.2 remained absent without sufficient reason or course. Hence O.P. 2 is placed exparte. 5. In order to substantiate the complaint averments, complainant filed his affidavit evidence and produced copy of the admission card, legal notice, reply letter, copies of correspondence, copy of the notice, examination application form, hallticket, time table, copy of the repudiations letter issued by O.P. O.P.1 has fail to filed his affidavit evidence in support of defence version, O.P.1 has produced letter dated 2-7-2010, minutes of the meeting dated 11-3-2010, copy of the letter dt:12-3-2010 to complainant. Both Complainant & OP1 submitted the written arguments. Heard oral arguments from complainant and taken as heard from O.P.1 side. 8. At the outset it is not in dispute that the complainant lurd away with the colourfull presentations made by O.P.2, director of Bangalore school of management got enrolled to the distance education in Bachelor of business administration with O.P.1 who is a counter for distance education. On 6-10-2009 and paid a sum of Rs.4,155/- to O.Ps. The receipt issued by O.P.1 is produced O.P.1 assigned. Admission card No.8040 and identity card OP has assured to dispatch the study material within one month from the date of admission. Inspite of repeated requests O.Ps. failed to send the study materials even in the month of December 2009. Hence complainant got issued legal notice on 30-12-2009 requesting OP to refund the amount along with compensation. On 5-1-2010 OP sent a letter to the complainant asking for requisition along with original admission card and identity cards. On 20-1-2010 complainant complied the same. Copies of the requisition and postal acknowledgement card is produced by the complainant for having sent the same. Instead of refund complainant received application form and time table for examination copies of application form and time table are produced. On 10-3-2010 OP sent a letter refusing to refund the feel. Hence complainant approached this forum for the necessary reliefs. 9. As against the case of the complainant the defence of the O.P.1 is that it has given provisional approval to O.P.2 as a acade3mic partner institution for Bharatidasan university with a condition that provisional approval can be withdrawn at any time and students admitted will be transferred to near by appeared institution if students strength is less than ten. Initially complainant and two more candidates alone joined at Bangalore school of Management centre for BBA course. Hence they are directed to continue their study at Udaya Centre. There is no basis for this defence O.P.1 has failed to produce any materials to show how many students were admitted, what should be the strength, when O.P.1 informed were admitted, what should be the strength, when O.P.1 informed the complainant to continue his study at Udaya centre. Hence same cannot be receipted. Further it is contended by O.P.1 that standing committee meeting held on 12-12-2010 rectified to revise the syllabus for BBA course through distance with effect from academic year 2009-2010. The Syndicate of O.P.1 at its meeting held on 18-2-2010 also approved the decision of SCAA. The presence persons were identified for preparation of study materials in accordance with the syllabus approved by the Syndicate. This is the actual reason for delay to dispatch of study materials for BBA course. In the absence of any material it is difficult to accepts the contention of the O.P.1 that there should be society day time between dispatch of study materials and examination. Further it is contended by O.P.1 that study materials for newly framed syllabi have been prepared and sent to Udaya educational society Vijaynagar Bangalore on 3-2-2010. Again there is no supportive documents are produced by O.P.1. hence in the absence of any materials we cannot unable to accept the contention of O.P.1 that it has said study materials on 3-2-2010. hence the contention of O.P.1 that complainant himself declared to discontinue the course and not eligible for refund has no merits. O.P. has not part with any service to the complainant. hence OP is not entitle to retain the fees.OP having accepted fees of Rs.4155/- from the complainant on 6-10-2009 has failed to supply the study materials till. Dec. 2009 for the examination scheduled in the month of March 2010 and sent hall ticket and application for examination. This act of O.P. amounts to deficiency in service on the part of O.Ps. We are satisfied that complainant is able to prove the deficiency in service on the part of the O.Ps. Inspite of service of notice O.P.2 remained absent. We can draw the inference that O.P.2 admits all the allegations made by the complainant in toto. Under the circumstance we are of the view that complainant is entitled for refund of full paid along with litigation cost of Rs.1000/-. Accordingly we proceed to pass the following ORDER The complaint is a allowed in part. O.P.1 is directed to refund Rs.4155/- along with litigation cost of Rs.1000/- to the complainant. This order is to be complied within 4 weeks from the date of communication of this order failing which complainant is entitle for interest at the rate of 9% p.a. from 6-10-2009 to till the date of realisation. 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 19th day of July 2011.) MEMBER PRESIDENT RK. | 
