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 /> <br /> 2. Smt.Y.V.Uma Shenoi,<br /> M.Sc., B.Ed., - Member<br /> <br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 320, 321, 339 & 367/09 DATED 13.11.2009<br /> <br /> COMMON ORDER<br /> <br /> Complainant in CC 320/09 Vishwanath.P.M., S/o P.M.Manjaiah,<br /> No.2, Block No.17, SBM Colony, Srirampura 2nd Stage, Mysore-23.<br /> <br /> Complainant in CC 321/09 Basavaraj.K.N., S/o K.Nanjegowda, No.3, Block No.17, SBM Colony, Srirampura 2nd Stage, Mysore-23.<br /> <br /> (By Sri Sridhar Chakke, Advocate<br /> <br /> Complainant in CC 339/2009 1. Mr.Murali Krishna Yerramsetty, S/o Mr.raghavendra Rao Yerramsetty<br /> 2. Mrs.Revana Tulasi, W/o Murali Krishna Yerramsetty,<br /> No.1103, 9th B Main, 2nd Phase, J.P.Nagar, Bangalore-560076.<br /> And now presently R/at No.203, D.P.Apartments, Bilekhalli, <br /> Bangalore-560076.<br /> And permanently R/at<br /> No.5-19-16A/3, 2/18, V.B.Kuteer Road, Brodipeta, Guntur-522002, <br /> Andhra Pradesh<br /> <br /> (By Sri K.P.Chandrashekar Reddy, Advocate)<br /> Complainant in CC 367/2009 Nasir Nayeen Khuraishi, <br /> S/o M.A.Hakim Khuraishi, <br /> R/at No.33/44, Mission Hospital Road, Tilak Nagar, Mysore-570021.<br /> (By Sri T.V.Balakrishna, Advocate)<br /> Vs. <br /> Opposite Parties in 3 cases are same 1. Mysore Home Developers Pvt. Ltd., No.545, 2nd Stage, Main Road, Rajiv Nagar, Mysore-570019. Rep. by its Managing Director, Mr.Syed Nizam Ali.<br /> 2. 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 /> <br /> Opposite party in CC 367-2009 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 /> <br /> (By Sri P.T.Ponnappa, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaints in CC 320 & <br /> 321-2009 : 26.08.2009<br /> Date of filing of complaint in CC 339-2009 : 09.09.2009<br /> Date of filing of complaint in CC 367-2009 : 05.10.2009<br /> Date of appearance of O.P. in CC 320 & <br /> 321-2009 : 15.09.2009<br /> Date of appearance of O.P. in CC 339-2009 : 29.09.2009<br /> Date of appearance of O.P. in CC 367-2009 : 20.10.2009<br /> Date of order : 13.11.2009<br /> Duration of Proceeding in CC 320 & 321-2009 : 1 MONTH 28 DAYS<br /> Duration of Proceeding in CC 339-2009 : 1 MONTH 13 DAYS<br /> Duration of Proceeding in CC 367-2009 : 23 DAYS<br /> <br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. In all these cases, though the complainants are different, the opposite parties are common. Further, the allegations made in all the complaints are similar except the site numbers, price, the advance paid and the dates. The defence of the opposite parties in all the cases is same. Hence, for convenience by the common order, all the cases are being disposed off.<br /> <br /> 2. All the complaints are filed by the respective complainants under section 12 of the Consumer Protection Act. For convenience, the site numbers, measurement, the price, the advance payment and the date of agreement is shown below in the table.<br /> CC No. Site No. Measurement Price Advance amount Date of agreement<br /> 320/09 109 30’ x 40’ 6,60,000/- 1,65,000/- 04.03.2007<br /> 321/09 341 40’ x 60’ 13,20,000/- 3,30,000/- 04.03.2007<br /> 339/09 128<br /> 365 30’ x 40’<br /> 40’ x 60’ 14,40,000/- 3,60,000/- 13.03.2010<br /> 367/09 227/7 30’ x 40’ 6,00,000/- 1,50,000/- 16.02.2007<br /> <br /> 3. The complainants have alleged that, the first party is a company and the second party is it’s Managing Director. The opposite parties approached the complainants, stating that they are promoting housing sites in the name and style “Rajaji Nagar Layout” at Lingambudhi Village, Kasaba Hobli, Mysore Taluk, Mysore with all formalities and civic amenities like Tar Roads, water, drainage system, required for a decent residential township. Based on the promise and the assurance of the opposite parties, sale agreements came to be executed between the parties. The respective complainants paid the advance amount as noted in the above table. Balance amount was to be paid in two installments, at the time of demarcation of site, road cuttings, and providing civic amenities and the last one at the time of registration of the sale deed. After the agreements, the opposite parties have not made any attempts to develop the layout with all formalities and civic amenities. The opposite parties had agreed to complete the same within six months from the date of the agreements. The opposite parties having not complied with the terms and conditions of the agreements, caused deficiency in service on their part. When the complainants approached the opposite parties, they did not satisfy the complainants for the delay in completion of the development work. The complainants requested the opposite parties to refund the amount with interest. Further, it is alleged that, as per clause 3 (a) of the agreement, the opposite parties agreed to pay 15% additional extra amount on the advance received, in case, the site is not handed over with all development work, within six months and the complainants were to choose to withdraw from the purchase of the sites. On these grounds, the complainants have prayed to direct the opposite parties to refund the advance amount, as well as 15% extra amount, as agreed and so also, interest at the rate of 18% p.a. from the date of the receipt of the advance and cost of the proceedings. (In all the complaints, the advance amount, 15% extra amount, as well as the interest is separately mentioned, which is not repeated here). On these grounds, it is prayed to allow the complaints.<br /> <br /> 4. In all the cases, in the versions, opposite parties have contended that, the complaints are false, frivolous, vexatious and are not maintainable. The opposite parties have admitted the agreements between the parties and the advance paid by the respective complainants. It is contended by the opposite parties that, second installment was to be paid at the time of demarcation of site, road cuttings, and providing civic amenities. But, the complainants have failed to make payment of second installment, in spite of several requests made. However, further opposite parties have admitted that, they had agreed to complete the formation of the layout with appropriate development, within six months from the date of the agreement, but, modified plan was submitted to MUDA, which was not approved then, and as such, development was not completed. Now, the modified plan has been approved on 26.02.2009 and as such, the opposite parties have continued with the work and within two years, the development work will be completed and will start allotting the sites, as agreed. It is stated, because of the legal hurdles, the work was not started. It is contend that, the opposite parties have not received any letter or notice from the complainants. The complaints are liable to be rejected for non-payment of second installment. Further, it is contended that, complainants are seeking recovery of money, based on the contract and as such, this Forum has no jurisdiction to entertain the same. The opposite parties are ready to allot the sites after completion of the developmental work. On these grounds, it is prayed to dismiss the complaints.<br /> <br /> 5. To prove the facts alleged in the complaints, the respective complainants have filed their affidavits and produced several documents. On the other hand, the second opposite party Managing Director of the first opposite party has filed his affidavit and produced certain documents. We have heard the learned advocate for the complainants as well as opposite parties and perused the entire material on record.<br /> <br /> 6. Now, the points for our consideration are as under.<br /> 1. Whether all or any of the complainants have proved that there is deficiency in service on the part of the opposite parties and that they are entitled to the reliefs sought?<br /> 2. What order?<br /> <br /> 7. Our findings are as under:-<br /> Point no.1 : Affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 8. Point no. 1:- The agreements of sale between the parties relied upon by the respective complainants, is admitted by the opposite parties. All the terms and conditions of the agreements, including the receipt of advance amount from the respective complainants is admitted by the opposite parties.<br /> <br /> 9. The complainants have claimed that, the opposite parties agreed to complete all the formalities and civic amenities like tar road, water, drainage system required for decent residential township, within a period of six months. That fact is mentioned in the beginning of the agreements. In the versions also, it is admitted that, within six months, the developmental work was to be completed. Considering the respective dates of the agreements, it is fact that, in spite of lapse of several years, as agreed, the opposite parties have not completed the development of the layout. Thus, safely we can conclude that, there is deficiency in service on the part of the opposite parties.<br /> <br /> 10. The opposite parties have contended that, because of some legal hurdle, the development was not completed in time. Irrespective of truth or otherwise in the said contention, admittedly the opposite parties had agreed to complete the development work, within six months and on failure of which amounts to deficiency in service. It is relevant to note that, in the year 2006 and 2007 beginning of the respective years, agreements were entered into and now, we are at the end of year 2009. In the version, the opposite parties contended that, now they have continued development work and within two years, it will be completed and they will start allotting the sites. It goes to show that, even as on today, the sites are not ready and as contended, the work may take another two years. Under the circumstances, the cause shown or reasons assigned by the opposite parties are not the grounds to hold that, there is no deficiency in service on their part.<br /> <br /> 11. The next contention of the opposite parties is that, the complainants have not paid the second installments, as agreed in spite of several requests. Firstly, to show that, in fact, the opposite parties made demands for payment of second installments from the complainants, there is no document and evidence, worth to be appreciated. Secondly, as per the admitted agreements, the second installment was to be paid after demarcation of site, road cuttings and providing the rest of the civic amenities. When that is the admitted condition and there being no road cuttings and providing civic amenities, the complainants are not at all liable to pay the second installments. Hence, in fact said contention of the opposite parties is false and frivolous.<br /> <br /> 12. The opposite parties have contended that, the complaints are false, frivolous and vexatious. We failed to understand how the complaints are false, frivolous and vexatious. At the cost of repetition, admittedly, the opposite parties have executed the agreements and received the advance amount, agreeing to complete the development work including civic amenities, within six months. Admittedly, opposite parties have not complied with the said condition. In spite of it, the opposite parties contend that, the complaints are false, frivolous and vexatious. The said contention of the opposite parties is false, frivolous and vexatious. <br /> <br /> 13. The opposite parties further contend that, they have not received any letter or notice from the complainants. In all the cases, copy of the notice sent to the opposite parties under Certificate of Posting as well as RPAD and so also, the Certificate of Posting and postal acknowledgement duly served on the opposite parties, are produced. In spite of it, the opposite parties falsely contend that, they did not receive any letter or notice.<br /> <br /> 14. The last contention of the opposite parties is, the complainants are seeking relief of recovery of money, based on the contract and hence, this Forum has no jurisdiction to entertain the complaints. It is true, in all the complaints, the complainants have sought refund of the advance amount as well as damages and the cost. But, it is relevant to note that, said claim is based on deficiency in service on the part of the opposite parties. When that is so, the complaints are maintainable before this Forum and this Forum has got jurisdiction not only to entertain the same, but also to decide.<br /> <br /> 15. Now, coming to consider the reliefs sought, firstly, all the complainants have sought refund of the advance amount. Further, they have claimed 15% extra amount on the amount received by the opposite parties, as per the agreement. In all the agreements, clause 3(a) reads as under:-<br /> “If as agreed by the first party the site is not handed over with all development work completed to the second party by the first party within six month then the second party may choose to withdraw from purchasing the site and the first party is liable to pay to the second party with an additional 15% extra on the received amount to the second party.”<br /> 16. At the cost of repetition, all the terms and conditions of the agreement are admitted by the opposite parties. admittedly the opposite parties have not completed the development work, within six months. Hence, as agreed, the opposite parties are liable to pay additional 15% extra on the amount received. Further, complainants have claimed interest at the rate of 18% p.a. from the date of payment of the amount, till realization. Considering the entire facts, we feel it is just and proper. <br /> <br /> 17. Accordingly, we answer the point in affirmative. <br /> 18. Point No. 2:- From the discussions made above and conclusion arrived at, we pass the following order: <br /> COMMON ORDER IN CC 320, 321, 339 and 367-09<br /> <br /> 1. All the complaints are allowed.<br /> 2. Both the opposite parties jointly and severally are hereby directed to refund the advance amount within a month from the date of this order to the respective complainants with interest at the rate of 18% p.a. from the date of receipt of the advance amount shown below in the table, till realization.<br /> Case No. Date Amount<br /> CC 320-09 04.03.2007 1,65,000/-<br /> CC 321-09 04.03.2007 3,30,000/-<br /> CC 339-09 15.07.2006 1,50,000/-<br /> 08.08.2006 2,10,000/-<br /> CC 367-09 16.02.2007 1,50,000/-<br /> <br /> 3. Further, the opposite parties are directed to pay an additional 15% extra amount on the advance received to the respective complainants, within a month from the date of this order, failing which said amount also shall carry interest at the rate of 18% p.a.<br /> 4. Also, the opposite parties shall pay Rs.2,000/- towards cost of the proceedings to each of the complainants.<br /> 5. The original order shall be kept in CC-320/2009 and the Xerox copy in other 3 cases.<br /> 6. Give a copy of this order to each party according to Rules.<br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 13th November 2009)<br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> <br /> (Shivakumar.J)<br /> Member<br /> <br /> <br />