COMPLAINT FILED ON: 22.11.2010

DISPOSED ON:02.07.2011

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

DATED THIS THE 02^nd JULY– 2011

       PRESENT:- SRI. B.S.REDDY                 PRESIDENT                        

                         SMT. M. YASHODHAMMA        MEMBER    

                         SRI. A. MUNIYAPPA                 MEMBER

O R D E R S

SRI. B.S.REDDY, PRESIDENT

The complainant filed this complaint under Section 12 of the Consumer Protection Act, 1986 seeking direction against the Opposite Party (herein after called as O.P) to refund an amount of Rs.2,00,000/- with interest at 12% p.a. and to pay an amount of Rs.10,000/- towards incidental charges and Rs.5,000/- costs of the proceedings on the allegation of deficiency in service.

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

          Pursuant to the advertisement published by the OP about the sale of residential site at Mysore, the complaint paid Rs.2,00,000/- as advance amount on 12.05. 2008 towards cost of the site NO.26, project No.2(2) of Yogakshema Residential Layout, measuring 30 X 40 , situated at Shyadhanahally, Kasaba Hobli, Mysore Taluk, Mysore. OP has issued receipt acknowledging the receipt of the advance sale consideration and executed agreement of sale undertaking to register the sale deed soon after the approval of the competent authority. OP was giving various reasons for not obtaining the approval from the competent authorities, during the month of January-2010, the OP stated to refund the amount in view of not completing the project. OP neither refunded the amount nor executed the sale deed in spite of receipt of legal notice. OP has given evasive reply. Hence the complaint.

2. On appearance, OP filed version contending that the complaint does not come under the provisions of the Consumer Protection Act, 1986 and the complainant is not a consumer as defined under the Act. There is no deficiency of service on the part of the OP in the process of getting approval from the competent authorities and OP is willing to handover the possession of the said site after necessary approvals as agreed in the agreement to sell. The advance amount was taken by OP to meet various expenses such as NOC from the Statutory Authorities, Conversion, development of the layout etc., and to obtain necessary approval from the competent authority. The complainant if has any grievances has to file, a suit for specific performance. It is admitted that OP has received Rs.2,00,000/-as advance and executed the agreement deed on 12.05.2008. The advance received cannot be returned back, since OP is in the process of getting the approvals from the concerned authority. The agreement does not reflect any obligation on the part of the OP to pay interest in case of any delay in the repayment of the advance. The maximum amounts even as per the agreement would be Rs.2,00,000/- + Rs.20,000/- as agreed between the parties. The amount of Rs.10,000/- claimed on the ground of incidental charges and mental agony are all false and  absurd. OP is not liable to pay Rs.5,000/- towards cost of the proceedings. Hence, it is prayed to dismiss the complaint with costs.

3. The P.A.Holder of the complainant filed affidavit evidence and produced documents. The partner of OP filed affidavit evidence in support of the defence version.

4. Arguments on both sides heard. Points for our consideration are:  

      Point No.1:- Whether the complainant proved the        

                          deficiency in service on the part of

                            the OP?

Point No.2:- Whether the complainant is entitled

                   for the reliefs claimed?

       Point No.3:- To what Order?

5.    We record our findings on the above points are:

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 out set, it is not at dispute that OP being builders and developers entered into an agreement to sell site NO.26 project No.2(2) of Yogakshema Residential Layout measuring 30 X 40, situated at Shyadhanahally, Kasaba Hobli, Mysore Taluk, Mysore and received advance sale consideration of Rs.2,00,000/- on 12.05.2008 from the complainant and executed agreement deed undertaking to execute the sale deed soon after the approval of the layout by the competent authority. The terms and conditions are incorporated in the agreement deed. OP was unable to form the said layout, the complainant demanded for refund of the advance paid and got issued legal notice, OP failed to refund the amount. When OP has not formed the layout and there is no possibility of forming any layout immediately, there was no justification on the part of the OP in not refunding the amount received an advance. We are unable to accept the contention of the OP that the process of getting approval from the competent authorities is in progress and OP is willing to handover the possession of the site soon after the approval. OP has not produced any material for having acquired the land, obtained the conversion order and submitted the layout plan for approval. There is no merit in the contention that the complainant is not a consumer and the provisions of Consumer Protection act are not applicable, for the reason that the amount of sale consideration agreed to be paid for the site proposed to be formed in the layout includes the service charges for forming the layout paid to the OP. Therefore, it is not a simple sale agreement for the site already in existence, the process of forming the layout and developing the same is a service to be rendered by OP for the said service the amount of sale consideration is fixed including the service charges. Under these circumstances, we are of the view that the act of OP neither in developing the layout and executing the sale deed nor refunding the advance amount, amounts to deficiency in service on its part.

7.    The complainant is claiming interest at 12% p.a. from the date of claim till the date of realization and an amount of Rs.10,000/- incidental charges. Clause-8 of the agreement deed reads:-

“If the vendor fails to register the site in favour of the purchaser, shall pay sum of Rs.20,000/- along with advance amount of Rs.2,00,000/-“.

From the above clause it becomes clear that the parties have agreed for refunding the amount received with Rs.20,000/- additional amount. There is no stipulation in the agreement deed to pay interest on the advance amount, which refunding the same. Therefore, the complainant is not justified in demanding interest at 12% p.a. on the amount of Rs.2,00,000/-. The complainant has not produced any material in support of incidental charges claimed. Under these circumstances, we are of the view that the complainant is entitled for refund of the amount with an amount of Rs.20,000/- in all Rs.2,20,000/-.Accordingly, we proceed to pass the following:               

                                      O R D E R

The complainant filed by the complaint is allowed in part.

The OP is directed to pay a sum of Rs.2,20,000/- to the complainant with litigation cost of Rs.2,000/- within 4 weeks from the date of this Order. In default the complainant is entitled for interest at 12% p.a. on the said amount from the date of complaint till the date of realization.

Send copy of this order to both the parties free of costs.

(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 2^nd day of July – 2011.)

MEMBER                          MEMBER                  PRESIDENT                     

  Cs: