IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 375/09 DATED 20.11.2009<br /> ORDER<br /> <br /> Complainant Nagaraju. S.M S/o Mallaiah S.K, No.1535, 6th cross, 3rd Main, Vijayanagara 2nd stage, Mysore-17.<br /> <br /> (Bt Sri. Sridhar Chakke)<br /> <br /> Vs. <br /> Opposite Party 1. Mr. Syed Nizam Ali, Managing Director, Mysore Home Developers Pvt. Ltd., No.545, 2nd stage Main Road, Rajiv Nagar, Mysore-570019.<br /> 2. Mr. Syed Nizam Ali S/o late Tahar Ali, Managing Director, M/s Mysore Home Developers Pvt. Ltd., No.545, 2nd stage main road, Rajiv Nagar, Mysore-570019.<br /> ( By Sri. P.T. Ponnappa. Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 12.10.2009<br /> Date of appearance of O.P. : 22.10.2009<br /> Date of order : 20.11.2009<br /> Duration of Proceeding : 28 days<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. Under Section 12 of the Consumer Protection Act the complainant has filed the complaint against the opposite parties to direct them to refund of Rs.6,30,000/-, the advance amount paid towards the site along with 15% extra amount and so also interest at the rate of 18% and cost of the proceedings.<br /> <br /> 2. Amongst other facts in the complaint, it is alleged that opposite parties have executed agreement of sale in favour of the complainant, with respect to site No.210 in Sy.No.59/1, Rajaji Nagar, Lingambudhi Village, Kasaba Hobli, Mysore for consideration of Rs.6,30,000/- on 21.03.2007. The complainant has paid the entire sale consideration amount to the opposite parties. The opposite parties agreed to execute Registered Sale Deed with a period of one year after full development of site. The opposite parties have not made any attempt to develop the site with all formalities and civic amenities like tar roads, power, water, under ground drainage etc., The opposite parties have agreed to pay an additional 15% extra on the amount received, if the site is not handed over with all development work within a year. The opposite parties have failed to render the service as agreed. Hence, it is prayed to allow the complaint.<br /> <br /> 3. In the version, the agreement between the parties as well as terms and conditions of it are admitted. It is contended that MUDA did not approve the plan and as such, modified plans was submitted and now the work is under progress, which will be completed within two years and as agreed, the site will be sold to the parties. It is contended that, complaint is for recovery of money and as such, this Forum has no jurisdiction and the complainant has to approached the Civil Court. It is stated that the complaint is false, frivolous, and vexatious. On these grounds, it is it is prayed to dismiss the complaint.<br /> <br /> 4. To prove the facts alleged in the complaint, the complainant has filed his affidavit and produced certain documents. On the other hand, the second opposite party, who is the director of the first opposite party company has filed his affidavit and certain documents are produced. We have heard both the learned advocates and perused the records.<br /> <br /> 5. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved any deficiency in service on the part of the opposite parties and that he is entitled to the reliefs sought?<br /> 2. What order?<br /> 6. Our findings are as under:-<br /> Point no.1 : Affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> 7. Point no. 1:- The agreement between the parties relied upon by the complainant including the terms and conditions thereof as well as receipt of sale consideration by the opposite parties, is admitted.<br /> <br /> 8. The opposite parties have agreed to execute Registered Sale Deed within a year from the date of the agreement. The agreement is dated 21.03.2007. Now, more than 2 ½ years elapsed. Admittedly layout is not completely developed. The said site to be sold is not provided with all the amenities as agreed. Hence, safely we can conclude that, the opposite parties have committed default and there is deficiency in service on their part.<br /> <br /> 9. For the said reason, complainant has sought refund of the entire sale consideration. Since there is deficiency in service on the part of the opposite parties, the complainant is entitled to the said amount.<br /> <br /> 10. Clause 3(a) of the agreement provides that, in case the site is not handed over with all development work within one year then opposite parties to pay additional 15% extra on the amount received. Hence, as claimed by the complainant, he is entitled to said extra amount.<br /> <br /> 11. The opposite parties received huge amount of Rs.6,30,000/- more than 2 ½ years back but have not developed the site and now they contend that, even it may take two more years. Under the circumstances, the opposite parties having utilized the amount of the complainant, are liable to pay interest at the rate of 18% p.a.<br /> <br /> 12. Before concluding, in spite of the admitted agreement between the parties and the terms and conditions and the opposite parties having committed breach thereof and their being deficiency in service, still in the version contended that, the complaint is false, frivolous, and vexatious. We fail to understand how the complaint is false, frivolous and vexatious. On the other hand, the said contention of the opposite parties is false and vexatious. Then in the version it is contended that by the complaint, the complainant is seeking relief of recovery of money and hence, has to approached the Civil Court and complaint before the Forum is not maintainable and the Forum has no jurisdiction. It is true, that the complainant has sought refund of the advance consideration but it is on the ground that there is deficiency in service on the part of the opposite parties. Hence, the said contention is without substance.<br /> <br /> 13. Accordingly, our finding in the point is in affirmative.<br /> <br /> 14. Point No. 2:- From the discussion made above and conclusion arrived at, we pass the following order.<br /> <br /> ORDER <br /> 1. The complaint is allowed.<br /> 2. The opposite parties jointly and severally are hereby directed to refund of Rs.6,30,000/- to the complainant with interest at the rate of 18% p.a. from the date of the agreement i.e., 20.03.2007, till realization and the said amount shall be paid within the month from the date of the order.<br /> 3. Further the opposite parties jointly and severally shall pay a sum of Rs.94,500/-, the 15% extra amount as per the agreement of sale, within a month from the date of the order, failing which, the said amount will carry interest at the rate of 18% p.a.<br /> 4. Also the opposite parties shall pay a sum of Rs.2,000/- cost of the proceedings.<br /> 5. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 20th November 2009)<br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br />