COMPLAINT FILED ON: 05.08.2010
DISPOSED ON: 10.03.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
10TH MARCH 2011
PRESENT :- SRI. B.S. REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI. A. MUNIYAPPA MEMBER
COMPLAINT NO.1837/2010
Complainant | Mr. Muhammed Aslam, S/o. Mr. Hamsa. P, Aged 39 yrs, R/at, “S.K.House”, Sayed Nagar, Taliparamba, Kannur District, Kerala-670 141. Advocte :S.A.Maruti Prasad V/s. |
OPPOSITE PARTY | M/s. Shree Enclave Having its Registered office at No.895/1, “SKANDA’ 14th Cross, Mahalakshmi Layout, Bangalore. Rep. by its Partner Mr. V.Bhaskar Reddy, Also at : Mr. V.Bhaskar Reddy, C/o Aishvarya Projects, No.717, Above Sagar Clinic, Basveswar Nagar, Modi Hospital Road, 2nd Stage, west of Chord Road, Bangalore-560 086 Advocte : Dhananjaya C.P. |
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 against the OP (herein after called as O.P) to refund advance amount of Rs.4,50,000/- and damages of Rs.50,000/- and cost on the allegations of deficiency in service.
2. The brief averments made in the complaint are as follows:
Attracted by the offer made by OP who is engaged in the business of forming the residential layout and sites; Complainant entered into agreement of sale dated 02.05.2008 with OP and booked a plot No.97 in the layout in the name and style “Sree Enclave” at Bheemanahalli, Billakemapnahalli, Bidadi Hobli, Ramanagaram Taluk, Bangalore rural District, for a total sale consideration of Rs.13,50,000/- and paid advance amount of Rs.4,50,000/- to OP by way of two cheques dated 19.04.2008 for Rs.2,50,000/- & Rs.2,00,000/- and the balance amount of Rs.9,00,000/- was agreed to be paid within one month from the date of approval. Complainant having complied the terms and conditions of the agreement of sale contacted OP and expressed his readiness and willingness to get sale deed executed in his name but OP gave evasive answers. Complainant personally visited the spot there was no development whatsoever. OP has not commenced the development work of the layout and not obtained the approval from the concerned authority. Hence complainant requested OP to refund the amount. There was no response from OP. On 26.05.2010 complainant got issued legal notice calling upon OP to refund advance amount of Rs.4,50,000/- along with interest at 18% p.a. from the date of agreement and also damages of Rs. 50,000/- for the mental agony and harassment that he underwent. Inspite of receipt of notice there was no response from OP. Hence complainant felt deficiency in service against the OP. Under these circumstances he is advised to file this complaint for the necessary reliefs.
3. On appearance OP filed its version admitting the fact that complainant entered into an agreement of sale with OP in respect of plot bearing No. 97 in M/s. ‘Shree Enclave’ situated at Beemanahalli village, Bilikempanahalli village, Bidadi Hobli, Ramanagaram Taluk, Bangalore Rural District for a total sale consideration of Rs.13,50,000/- and paid a sum of Rs.4,50,000/-. It is contended that OP had immediately informed the complainant that BMRDA in order to approve the master plan for Magadi, Nelamangala, Kanakapura, Hoskote, Anekal, Bidadi and Ramanagara, Chennapatna had banned land conversion and layout development from July 2006 because of which OP was unable to get any conversion or any plan from the concerned authorities. The land lock was only for one year but it was extended from time to time. Now the said land lock was unlocked by the government by approving the master plan on 08.09.2009. Now OP had applied for the conversion and approval of the layout from the concerned authority. This act of the OP is not intentional but for bonafide reason. OP is in the process of completion of the project and same will be completed within six months and OP do not want to loose the customer and ready to give the alternative site in their another layout to be formed at M/s. “My city” at Bidadi village for which OP applied for the sanction and approval and may get sanction within a period of three months. OP also offering alternate sites which are ready for registration formed in M/s. Royal Orchids, situated at Dhanagahalli Village, Jaypura Hobli, Mysore Taluk and district which was sanctioned by Town Planning Authority, Mysore. Vide its sanctioned plan bearing No. A.V.A 1406 dated 27.02.2009. Complainant only to harass the OP to make wrongful gain filed this complaint. Among other grounds OP prayed for dismissal of the complaint.
4. In order to substantiate the complaint averments complainant filed his affidavit evidence and produced copy of the agreement of sale dated 02.05.2008 and copy of the legal notice, postal acknowledgement and receipts. On behalf of OP Sri.B.Bhaskar Reddy, Partner of the OP filed his affidavit evidence and produced copy of the news paper cuttings dated 05.09.2009, 09.09.2009, 13.10.2009. Complainant submitted his written argument. Heard from complainant. Taken as heard from OP 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 OP?
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 approached OP who are engaged in forming of layout in the name and style M/s. “Sree Enclave” and intended to purchase a plot No.97 situated at Bheemanahalli, Billakemapnahalli, Bidadi Hobli, Ramanagaram Taluk, Bangalore rural District, measuring 1500 Sq. ft. for a total sale consideration Rs.13,50,000/-. Accordingly complainant entered into an agreement of sale dated 02.05.2008 with OP and paid advance amount of Rs.4,50,000/- to OP by way two cheques dated 19.04.2008 the balance amount Rs.9,00,000/- was agreed to be paid within one month from the date of approval. To substantiate this fact complainant has produced the copy of the sale agreement dated 02.05.2008. Both the parties have signed the agreement of sale. OP has acknowledged Rs.4,50,000/- paid by the complainant in the said agreement of sale. Complainant was ready to pay the balance sale consideration and expressed is willingness to OP to get the sale deed in is name but OP has failed to commence the development work of the layout and failed to obtain approval from the concerned authority even after lapse of two years of receiving the advance amount from the complainant. Hence complainant requested OP to refund the amount with damages and interest. There is no response to the legal notice. Hence complainant approached this Forum.
8. As against the case of the complainant the defence of the OP is that; in order to approve the master plan for Magadi, Nelamangala, Kanakapura, Hoskote, Anekal, Bidadi and Ramanagara, Chennapatna Government had banned land conversion and layout development from July 2006, because of which OP was not able to get conversion or plan from the concerned authority; the land lock was only for one year but was extended from time to time. Now the said land lock was unlocked by the government by approving master plan on 08.09.2009. To substantiate this fact OP has produced news paper cuttings in Times of India. Further it is contended by Op that it had applied now for the conversion and approval of the layout from concerned authorities. That means OP has entered into agreement of sale with complainant and received part of the sale consideration without obtaining the sanction plan and conversion order from the concerned authorities. This act of OP amount to deficiency in service on its part.
09. Further OP contended that the project will be completed within a period of six months and OP is ready to give alternative sites in other layout formed by the OP at Mysore namely “My Citi” situated at Bidadi Village. For that layout also OP applied for the sanctioned plan and approval and may get sanction within a period of three months. That means OP has not obtained sanction and layout approvals and conversion order from the concerned authority. Further it is contended by the OP that it is ready for registration in their another layout namely M/s. Royal Orchids, situated at Dhanagahalli Village, Jaypura Hobli, Mysore Taluk and district but complainant is not interested and has lost faith in the words of OP that said project would be completed because of the long delay on the part of the OP. Complainant is not interested in any allotment of site as offered by OP.
10. OP having received advance sale consideration of Rs.4,50,000/- from the complainant even after lapse of 2 ½ years till date OP is unable to register the site. When OP is aware of the fact that it cannot execute the sale deed, it could have fairly refunded the amount to the complainant. Retention of the same amounts to wrongful gain so as to cause wrongful loss to the complainant. OP failed to respond to the legal notice issued by the complainant. This act of OP further amounts to deficiency in service on its part. We are satisfied that complainant is able to prove the deficiency in service against OP. We are of the considered view that complainant is entitled for refund of Rs.4,50,000/- along with interest at the rate of 12% p.a. from 02.05.2008 till the date of realization and litigation cost of Rs.2,000/-. Accordingly we proceed to pass the following:
ORDER
The complaint filed by the complainant is allowed in part. OP is directed to refund of Rs.4,50,000/- along with interest at the rate of 12% p.a. from 02.05.2008 till the date of realization and pay litigation cost of Rs.2,000/- to the complainant.
This order is to be complied within four weeks from the date of its communication.
(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 10th day of March 2011.)
PRESIDENT
MEMBER MEMBER
gm.
