BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

07^th DAY OF MAY 2015

             PRESENT:- SRI. J.N.HAVANUR              PRESIDENT

                              SMT. M. YASHODHAMMA    MEMBER    

O R D E R

SMT. M. YASHODHAMMA, MEMBER

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, seeking direction against Opposite party-1 to refund the advance amount paid towards purchase of Flat with interest and expenses or to allot the flat agreed to sell along with undivided share of land as promised and further seeking direction against OP-2 to initiate action against OP-1 regarding illegal construction of the building along with costs and for such other reliefs as this Forum deemed fit on the allegations of deficiency in service.

2.      The brief averments made in the complaint are as follows:

OP-1 is the land developer doing business of constructing apartments and selling them in the Ideal homes township at Rajarajeshwarinagar, Bangalore.  Complainant approached OP-1 intending to purchase the flat bearing No.F-1, 343-D, 1^st Floor, Khatha No.497, 17^th Cross Road, Ideal Homes Township, Rajarajeshwarinagar, Bangalore-98.  After verifying the sanctioned plan shown by OP-1 vide No.AC/RRN/SPLP/1285/10-11 dated 26.10.2010 for construction of building measuring 3685.40 square feet consisting residential building complainant agreed to purchase a residential flat in the apartment of OP-1.  The sale consideration was agreed for Rs.40,00,000/- for the Flat no.F-1, measuring net built up area of 784 square feet along with undivided share of land.  The floor area ratio as per the sanctioned plan was 1.55 and OP-1 agreed and assured the complainant that he would give 505 sq. feet of land as undivided share of land to the complainant.  The complainant agreed for the said terms and paid Rs.1,00,000/- as advance through cheque dated 27.01.2014 drawn on Citi Bank to OP-1.  OP-1 has issued the receipt dated 27.01.2014.  On 30.01.2014 the said cheque issued by the complainant was cleared as per the bank statement.  Complainant started processing and approached bank seeking financial assistance.  The bank demanded an agreement of sale to give loan.  On 02.02.2014 complainant approached OP-1 and requested for execution of an agreement of sale.  OP-1 intimated the complainant that complainant would pay additional amount towards house purchase advance at the time of execution of agreement of sale and requested the complainant to come on 09.02.2014 to finalize the transaction.  On 09.02.2014 when complainant approached OP-1 he informed the complainant that he would give only 263.33 sq. feet as undivided share of land in the property and not 505 square feet as assured by him to the complainant.  Complainant appraised OP-1 about earlier discussion and assurance of OP-1 for giving 505 square feet land as undivided share of land to the complainant but OP-1 behaved very arrogantly and told complainant that it is not possible to give so much of land as complainant’s share and refused to give the same.  Later on complainant approached M/s.Satya Prabha Consultants Pvt. Ltd., who are Valuers, Consulting and Chartered Engineers and got the calculation of the undivided share of land eligible to him as under:

          The copy of the technical report issued by the Satya Prabha Consultants is produced.  Believing the assurance of OP, complainant approached the bank and paid Rs.10,000/- towards processing fees for the loan papers and later he approached the chartered engineers and paid Rs.10,000/- fee for obtaining opinion regarding the eligibility of the undivided share of land as per the sanctioned plan.  When complainant approached OP-1 with the above demands, OP-1 refused to agree for the terms as agreed by him earlier.  Consequently the complainant demanded OP-1 to reduce the sale consideration value since OP refused to give the undivided share of land as agreed upon by him earlier.  OP-1 did not heed to the complainant’s request and told him that he is not ready to reduce the property value nor give undivided share of land as agreed by him and told the complainant that he would give only 263.33 sq feet of land as undivided share of land to the complainant.  Hence complainant demanded OP-1 to return the amount of Rs.1,00,000/- paid as token advance along with additional expenditures.  OP-1 refused to return the advance amount and informed the complainant to do whatever he wants to do.  On 03.03.2014 complainant got issued legal notice calling upon OP-1 to refund Rs.1,00,000/- advance amount along with other expenses and interest within 7 days failing which he will take appropriate legal action for recovery of the same in the court of law.  The said notice was served on OP.  On 05.03.2014 the complainant received a missed call from one Mr.Raju, who is a Real Estate Agent from mobile No.8710801066.  On the same day complainant called Mr.Raju, he told the complainant that OP-1 is not ready to give the share of land or the amount which he had received towards flat purchase advance and OP-1 is not bothered and he would use his influence through Police since the OP-1 is a Retired ACP and tackle the complainant.  On 17.03.2014 the complainant sent a text message requesting OP-1 as to what steps he had taken regarding the refund of the amount but OP-1 failed to respond to the said message.  There is a glaring violation in construction of the building and constructed the major portions and floors without any sanction from the authority and has built the apartment with major diversion from the sanctioned plan and OP-1 is not able to give the promised undivided share of land to the complainant.  The office of OP-2 is situated in the very next road and the apartment is clearly visible to the officials of OP-2 office during the progress of construction work of the apartment but officials of OP-2 have not bothered to question OP-1 regarding violations or diversions in the construction of the apartment.  Hence, OP-2 is directly responsible for the illegal act of OP-1 and OP-2 is answerable for the blunder committed by OP-1.  Hence, OP-2 is also made party to this complaint.  In spite of repeated requests and demands when OP-1 failed to refund the amount or to give the agreed undivided share of land, complainant felt deficiency in service against OP.  Hence, the complainant has come up with present complaint.

3.  After registration of complaint, notices were sent to Opposite Parties-1 & 2 by RPAD.  In spite of service of notice, OPs.1 & 2 failed to appear before this Forum.  Hence OPs are placed ex-parte and posted the case for filing affidavit of complainant.

4.  So as to prove the case, the complainant has filed his affidavit evidence by way of evidence.  Complainant has also filed written arguments.  We have heard the oral arguments of the complainant.  We have gone through the oral and documentary evidence of the complainant meticulously.

5. One C.Raghavendra, who being complainant has filed his affidavit evidence in support of complaint averments stating that OP-1 is the land developer doing business of constructing apartments and selling them in the Ideal homes township at Rajarajeshwarinagar, Bangalore.  Complainant approached OP-1 intending to purchase the flat bearing No.F-1, 343-D, 1^st Floor, Khatha No.497, 17^th Cross Road, Ideal Homes Township, Rajarajeshwarinagar, Bangalore-98.  After verifying the sanctioned plan shown by OP-1 vide No.AC/RRN/SPLP/1285/10-11 dated 26.10.2010 for construction of building measuring 3685.40 square feet consisting residential building, complainant agreed to purchase a residential flat in the apartment of OP-1.  The sale consideration was agreed for Rs.40,00,000/- for the Flat no.F-1, measuring net built up area of 784 square feet along with undivided share of land.  The floor area ratio as per the sanctioned plan was 1.55 and OP-1 agreed and assured the complainant that he would give 505 sq. feet of land as undivided share of land.  The complainant agreed for the said terms and paid Rs.1,00,000/- as advance through cheque dated 27.01.2014 to OP-1.  OP-1 has issued the receipt dated 27.01.2014.  Complainant approached bank seeking financial assistance.  Consequently, the bank demanded for an agreement of sale to give loan.  On 02.02.2014 complainant approached OP-1 for execution of agreement of sale.  OP-1 requested the complainant to come on 09.02.2014.  On that day OP-1 informed the complainant that he would give only 263.33 sq. feet as undivided share of land in the property and not 505 square feet as assured by him.  Complainant appraised OP-1 about earlier discussion and assurance of OP-1 for giving 505 square feet land as undivided share of land to him but OP-1 behaved very arrogantly and told him that it is not possible to give so much of land as his share and refused to give the same.  Hence complainant approached M/s.Satya Prabha Consultants Pvt. Ltd., who are Valuers, Consulting and Chartered Engineers and got the calculation of the undivided share of land eligible to him as under:

Believing the assurance of OP, complainant approached the bank and paid Rs.10,000/- as processing fees for the loan papers and approached the chartered engineers and paid Rs.10,000/- fee for obtaining opinion with regard to the eligibility of the undivided share of land as per the sanctioned plan.  OP-1 refused to agree for the terms as agreed earlier.  Hence, complainant requested OP-1 to reduce the sale consideration value since he refused to give the undivided share of land as agreed upon by him earlier.  But OP-1 did not heed to his request and told him that he is not ready to reduce the property value nor give undivided share of land as agreed by him and told that he would give only 263.33 sq feet of land as undivided share of land to him.  Hence complainant demanded to refund the advance amount of Rs.1,00,000/- along with additional expenses incurred by him.  But OP-1 refused to return the same and told the complainant to do whatever he wants to do.  In spite of service of legal notice dated 03.03.2014 OP neither replied nor return the amount since there is a glaring violation in construction of the building and constructed the major portions and floors without any sanction from the authority and has built the apartment with major diversion from the sanctioned plan.  OP-1 is not able to give the promised undivided share of land to the complainant.  The office of OP-2 is situated in the very next road and during the progress of construction work of the apartment the officials of OP-2 not bothered to question OP-1 regarding violations or diversions in the construction of the apartment.  Hence, OP-2 is directly responsible for the illegal act of OP-1.  Hence, OP-2 is made a party to this complaint.  Under the circumstances complainant was put to great hardship and mental agony.  Hence, he prayed to allow the complaint against OPs and grant reliefs as prayed in the complaint.

6. The above said assertions of the complainant have remained unchallenged.  OPs.1 & 2 have neither filed version nor denied the sworn testimony of the complainant.  So under the circumstances, we have no reasons to disbelieve the sworn testimony of the complainant.

7. Let us have a cursory glance at the documents produced by the complainant.  Document No.1 is the copy of sanctioned plan standing in the name of complainant issued by the additional commissioner BBMP dated 26.10.2010.  Document No.2 is Bank statement of complainant issued by Citi Bank showing withdrawal of Rs.1,00,000/- by OP-1 on 30.01.2014.  Document No.3 is technical report dated 21.02.2014 issued by M/s. Satya Prabha Consultants Pvt. Ltd., to the complainant along with observations and views in respect of undivided share of land.  Document No.4 is copy of legal notice dated 03.03.2014 issued on behalf of complainant to OP-1.  Document No.5 is postal served AD card and receipts.  Document No.6 is original receipt issued by OP-1 dated 27.01.2014 for having received Rs.1,00,000/- from complainant as advance by way of cheque.

8. On perusal of oral and documentary evidence of the complainant, it is made clear that on 26.10.2010 complainant after verifying the sanctioned plan issued by OP-1 for construction of building measuring 3685.40 square feet has agreed to purchase a residential flat in the apartment of OP-1.  The sale consideration was agreed for Rs.40,00,000/- for the Flat no.F-1, measuring net built up area of 784 square feet along with undivided share of land.  The floor area ratio as per the sanctioned plan was 1.55.  It is the case of the complainant that OP-1 has agreed and assured the complainant that he would give 505 sq. feet of land as undivided share of land to the complainant.  Having agreed for the said terms complainant paid Rs.1,00,000/- as advance to OP-1 on 27.01.2014 by way of cheque.  The said amount has been withdrawn by OP-1 on 30.01.2014 and OP-1 has acknowledged the receipt of Rs.1,00,000/- by issuing a voucher dated 27.01.2014 to the complainant as per document No.2.  Based on the assurance given by OP-1, complainant approached bank for financial assistance but the bank demanded for execution of an agreement of sale for giving loan.  Hence, on 02.02.2014 complainant approached OP-1 for execution of agreement of sale.  At that time OP-1 requested the complainant to come on 09.02.2014 to finalize the transaction.  When complainant approached on 09.02.2014 OP-1 informed the complainant that he would give only 263.33 sq. feet as undivided share of land in the property and not 505 square feet as assured by OP-1 to the complainant.  Complainant has not produced any document to show that OP has promised to give 505 square feet of undivided share of land.  In the absence of any agreement or document we are unable to accept that OP has assured to provide 505 square feet of undivided share of land to complainant.  In support of complaint averments, complainant has produced report from M/s. Satya Prabha Consultants Pvt. Ltd., who being Valuers, Consulting and Chartered Engineers and got the calculation of the undivided share of land as per document No.3, which shows the undivided share of land as 505 square feet.  Further it is observed under 2 (c) (d) and (e) of the report that the floor area as per sanction plan is 1.55 as against actual consumed floor area ratio of 3.38.  This means the excess floor area ratio consumed is 118% more than applicable floor area ratio as specified in sanction plan resulting in high deviation.  The chances of property being regularized under any scheme is remote because they are beyond any acceptable limits of regularization schemes.  3^rd floor does not have approved plan.  Plan approved for specified residential building and not multi dwelling unit, resulting in lower undivided share of land.  Thus OP-1 has violated the sanction plan while constructing.  Complainant has not produced any document to show that he has spent Rs.10,000/- towards processing fee and Rs.10,000/- towards legal opinion.  Since, complainant has proved payment of Rs.1,00,000/- to OP-1 towards advance amount for purchasing flat, he is entitled for refund of the same.  Through legal notice dated 03.03.2014 complainant demanded OP-1 to give 505 square feet land as undivided share of land but inspite of service of legal notice on 04.03.2014, OP has neither given reply nor complied the terms of notice.  Hence, complainant approached this Forum for refund of amount paid along with expenses and interest or to allot the flat agreed to sell along with undivided share of land as promised.

9. The act of OP-1 in neither refunding the advance amount nor making sale of the agreed flat with undivided share of land as promised amounts to deficiency in service.  The direction sought by complainant against OP-2 cannot be granted because this Forum has no authority to give such direction.  The complainant is at liberty to approach the appropriate authority.  We are satisfied that complainant has proved the deficiency in service against OP-1.  Under the circumstances, we are of the considered view that OP-1 is liable to refund Rs.1,00,000/- advance amount along with interest @ 18% p.a from 27.01.2014 to till the date of realization along with litigation cost of Rs.5,000/- to the complainant.  Accordingly, the complaint of complainant is partly sustainable.  In the result, for the foregoing reasons we proceed to pass the following:

                                         O R D E R

The complaint filed by the complainant is allowed in part.    OP-1 is directed to refund Rs.1,00,000/- to the complainant along with interest @ 18% p.a from 27.01.2014 to till the date of realization.  The OP-1 is further directed to pay litigation cost of Rs.5,000/- to the complainant.  This order is to be complied by   OP-1 within 30 days from the date of receipt of the order.

Complaint filed against OP-2 is dismissed.

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

(Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Court by us on this the 07^th day of May 2015)

MEMBER                                                                  PRESIDENT

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COMPLAINT NO.648/2014

Complainant                 -        Sri.C.Raghavendra                                                        
                                          -vs-

Opposite Parties           _        1) Sri.N.Chandraiah,

Ideal Homes Township,

Rajarajeshwari Nagar,

Bangalore-560098.

2) The Additional Commissioner,

Rajarajeshwari Nagar Division,

Bruhat Bangalore Mahanagara
         Palike,

Bangalore-560098.

Witnesses examined on behalf of the complainant dated 06.06.2014

1. Sri.C.Raghavendra

          OPs -       Nil

MEMBER                                                                 PRESIDENT

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