BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL
FORUM AT BANGALORE (URBAN)
20th JUNE 2011
PRESENT:- SRI.B.S.REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI.A.MUNIYAPPA MEMBER
COMPLAINT NO. COMPLAINANT | Sri.GUNASUNDARAM.K. Aged about 50 years S/o Sri.V.Kannappa, Residing at No.139, East end a main road, J.P.Nagar III phase, Bangalore- 560078. Advocate– Sri. Bhanuprakash. V/s |
OPPOSITE PARTIES | 1. M/s Omkar Estate Pvt. Ltd., Represented by its Managing Director, Sri. Tallam V.Nagaraj, Residing at # 43/1, Ist main, First floor, Kanakapura road, Basavanagudi, Bangalore – 560004. 2. M/s Omkar Estate Pvt. Ltd., Represented by its Joint Managing Director, Sri.K.R.Suresh kumar, Residing at SHREYA, # 43, New No.4/22, Old Puttamma road, Basavanagudi, Bangalore – 560004. Advocate for OPs 1 & 2 Sri. Somashekara Reddy 3. Sri. S.SHIVAKUMAR, Director of M/s. OMKAR ESTATE PRIVATE LTD, No.1254, 23rd Cross, 23rd Main Road, BSK II Stage, Bangalore. Exparte 4. Sri. M.V.Vasudeva Setty, Director of M/s. Omkar Estate Private Ltd., Sri Sathyanarayana Soap Nut Works, Opp: Vinod Talkies, Near Mandipet, Tumkur- 572101. Advocate for Sri. K.S.Raghavendra 5. Sri .N.V.Aswathnarayana Setty, Director of M/s. OMKAR ESTATE PRIVATE LTD, At No.10, 80 Feet Road, Bank Colony Main Road, Srinivasa nagar, BSK I Stage, Bangalore-560050. 6. Sri. B.K.Subramanyam, Director of M/s. OMKAR ESTATE PRIVATE LTD, M/s. Ashwini Silks, B.V.K. Iyengar Road, Chickpet Junction, Ist Floor, Bangalore-560053. 7. Sri. D. Venkatarathnam, Director of M/s. Omkar Estate Private Ltd., Proprietor, Sri Balaji Saw Mill, Chellakere Road, Pawagada- 577522. 8. Sri K.N. Ramaiah, Director of M/s. Omkar Estate Private Limited, Lakshmi Venkateswara Nilaya No.34, Chamundeswari Road, Rajeevgandhi Cross Road, Jaraganahalli, J.P.Nagar Post, Bangalore – 560078. 9. Smt.Pratriba Dileep, Dirtector of M/s. Omkar Estate Private Ltd., W/o. C.N. Dilip, No.379, 24th B cross, BSK II stage, Bangalore-560070. 10.Smt.Nasarathunisa, Director of M/s. Omkar Estate Private Ltd., W/o R.Bahadur khan, No.21/1, T.C.M.Royan Road Cross, Cheluvadi Palya, Bangalore-560053. Exparte |
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 O.Ps. to allot and register two sites of 30 X 40 fts by executing registered sale deed and to deliver possession or in alternative to refund the amount paid along with award compensation of Rs.1 lakh for mental agony and towards escalation of market value of site on the allegations of deficiency in service on the part of O.Ps.
2. The brief averments made is the complaint is as under:
Complainant attracted by the offer made by OPs thought of becoming member of OP Company which started business of procuring the land forming the residential layout and to sell the sites to its members on scheme basis collecting the amount in instalments. OP formed a layout namely ‘Omkar Nagar’ at Hosahalli, Amanikere, Hennagara Village, Jigani Hobli, Anekal Taluk, Bangalore district and issued public advertisement and pamphlets. O.P. issued two membership No.1309 and 1310 to the complainant. Complainant applied for two sites measuring 30’ x 40’ fts in the above layout. The tentative rate for two sites was fixed at Rs.65,000/-. The complainant initially paid Rs.55,500/-. O.P. issued the receipt acknowledging the payment of amount. Subsequently complainant paid Rs.9,500/- by way of cash to O.P. but O.P. failed to issue receipt inspite of repeated requests. Inspite of payment of entire site value O.Ps. failed to execute and register the sale deed. Though O.Ps. have already executed registered sale deeds in respect of other members and non members in the same layout O.P. failed to execute the sale deed, infavour of the complainant without any valid reason. Hence complainant caused legal notice dated:7-5-2008 calling upon O.Ps. to execute the registered sale deed of the two sites immediately within a fortnight. There is no response to the notice. Hence Complainant feet deficiency in service against the O.Ps. Under the circumstances he is advised to file this complaint for the necessary reliefs.
3. Initially complaint is filed aginst O.P.1 & 2. O.P.1 on appearance filed application to implead other directors, application allowed. O.P.3 to O.P.10 impleaded. O.P.1, 4 & 5 filed the version. O.P.3, 6 to 10 placed exparte.
O.P.1 filed version, O.P.4 filed memo adopting version filed by O.P.1. O.P.5 also filed the version. O.P.1 Aswathnarayana Shetty filed the version contending that he is not the Managing Director of O.P.1 Company, he is one of the director. O.P.2 & 5 Tallam V.Nagaraj represented as Managing director and Mr. K.R. Suresh kumar as Joint Managing Director of O.P.1 company. Hence complainant may be dismissed for mis-joinder and non- joinder of parties. The scheme of O.P.1 is different residential plots available in units of 30 X 40 fts and 40 X 60 fts on any person becoming the member by paying membership fees, documents charges and 50 monthly installments. Complainant not understood the scheme of O.P.1 Company and not paid full installment in time to O.P. Company. O.Ps. have already executed registered sale deeds to various members and non members in the above layout. O.P.1 has not received any notice from the complainant. Complainant is not a Consumer. Complaint is barred by limitation. If complainant got any grievances he can approach Managing Director and Joint Managing Director of O.P.1 Company at proper Court but not against this O.P. O.P.2 & 5 are in charge of entire Company matters. In the event of this forum were to proceed for recovery of the alleged amount can proceed against the properties including Sy.No.29, and situated in the above said layout, which is held by O.P.2 & 5. Among other grounds O.P.1 prayed for dismissal of the complaint.
4. O.P.1 & 2 filed the version admitting the membership of the complainant. The last payment made by the complainant on 24-6-1997. The complaint filed after 12 years is barred by limitation. O.P.2 & 5 admits that sites were agreed to be allotted for Rs.1,00,000 each to be paid in regular 50 installments without default at the rate of 1700/- along with documents charges of Rs.10,000/- payable in five installments on every 10th month Rs.2000/- each. The defaulters are not entitled for any site or valuation of site or the enhanced value of the site. Complainant is a defaulter not paid balance amount during these 12 years. Hence he is not entitled for the site or value of the site. As per the terms of the allotment letter clause 4 if allottee commits only 3 consecutive defaults, the allotment stands cancelled and the allottee loses his right to claim the site or refund will be made on completion of the scheme after deducting Rs.5000/- is Company suffered huge loss in the hands of the farmers, land owners already filed suits against the company. ( O.S.No.742/06. R.P.No.78/06 and O.S. 869/06). Complainant has lost his right over the allotted site allotment will not give any right to seek for execution of sale deed or possession. Among other grounds prayed for dismissal of the complaint.
5. In order to substantiate the complainant averments complainant filed his affidavit-evidence and produced original two sale deed of allotments, receipts issued by O.Ps. letter, legal notice and postal receipts, pamphlets, letter of O.P., brochure O.P.5 Aswathnarayana Setty filed his affidavit-evidence, O.P.4 Vasudeva Setty filed his affidavit evidence. O.P.2 K.R.Sureshkumar filed his affidavit evidence. O.P.2 to 5 produced plaint copy in O.S.No.1294/06 and O.S.No. 742/06. Complainant filed amendment application, allowed. Cause title amended. Heard arguments from both the sides.
6. In view of the above said facts, the points now that arise for our consideration in this complaint is as under:
Point No.1:- Whether the complainant
proved the deficiency in service
on the part of the OPs?
Point No.2:- If so, whether the complainant is
entitledfor the relief now claimed?
Point No.3:- To what Order?
7. We have gone through the pleadings of the parties both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:
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
8. At the outset it is not in dispute that the complainant became the member of the OP’s scheme. The OPs accepted the membership of the complainant and allotted membership number 1309 and 1310 to the complainant. Complainant applied for two sites measuring 30 X 40 fts each in the above layout and paid Rs.55,500/- in instalments to O.P. from 6/3/1997 to 13/4/1998. The receipts issued by O.Ps. are produced. The tentative rate for two sites was fixed at Rs.65,000/-. Hence complainant paid Rs.65,000/-. It is contended by the complainant that he paid Rs.9,500/- is cash to O.P. but O.P. failed to issue the receipt. Since complainant has proved payment of Rs.55,500/- only, he is entitled for only Rs.55,500/- along with interest. Now the grievance of the complainant is though OPs promised to complete the project before the stipulated period, but the OPs have not completed the project as promised even after collecting the full value of the site from the complainant. OP have not provided the amenities like roads, electricity, underground drainage, Water supply. OPs have not at all formed the layout even after long lapse of the time by which the project was to be completed. Complainant informed OP’s that they have not developed the project as promised and made a request to refund the amount along with interest and compensation. But the OP’s failed to refund the amount inspite of service of legal notice. Hence complainant approached this forum on the allegations of deficiency in service.
9. As against the case of the complainant defence of the OP 1,2,4,5 is that Ops have dropped the scheme offered by them. OPs admits that OP-1 company invited the members for its membership and company demarcated thousands of sites of different dimensions to its members who have paid entire sum of Rs.1 lakh along with other charges as per the decision of the Op Company; Complainant entered into an agreement to purchase a sites measuring 30 x 40 fts. but not paid the additional development charges of Rs.20,000/-. This contention of the OPs cannot be accepted because OP has not produced document demanding additional charges from the complainant.
10. Further the defence of the OPs regarding the jurisdiction of this forum to decide the dispute involved in the complaint. According to OP’s the dispute is not a Consumer dispute and as such jurisdiction of this forum is ousted. We find no merit in the said defence taken by the OPs for the reason the OPs promised to render service namely allotting of sites after collecting huge amounts from the complainant. It is ultimately found that OPs failed to keep up their promise namely not developed the layout and not provided the required amenities to the township as promised in their brochure. In that event the conduct of OPs certainly amounts to deficiency in service. Therefore we hold that dispute is a consumer dispute and this Forum has got jurisdiction to entertain this complaint.
11. Further the defence of OPs that this complaint is barred by limitation. In the present complaint there is passing of consideration by the complainant to the OP Company and admittedly two site were agreed to be sold to the complainant. Admittedly neither the sites are sold and registered in favour of the complainant nor the amount so received is refunded. Under law when there is neither sale of site nor refund of consideration received, unless there is a specific refusal the cause of action remains continuous. Therefore in a situation like this the observation made by the Hon’ble National Commission, Delhi, gains relevance in 2005 CTJ NC 499. The Hon’ble National Commission observed that cause of action remains continuous till compliance or till the compliance is refused. If there is a refusal of compliance precisely, then the cause of action commences and the limitation of 2 years begins to run from that date of refusal. In the present complaint there is neither compliance nor refusal. Therefore this complaint is not hit by law of limitation. Hence the defence of the OPs that complaint is barred by limitation is not sustainable.
12. We have perused the affidavit evidence and the documents produced by the complainant. In the 1st document issued by the OP-2; who is the Joint Managing director of OP-1 Company thanked the complainant for enrolling in their ‘Omkar Nagar’ residential site scheme and endorsed the receipt for Rs.5000/-. In the 2nd document which is a circular reflects the date of inaugural function of ‘Omkar Nagar’ as 02.02.1997 at Chowdaiah Memorial hall and collection of 1st instalment commences from 02.02.1997. As per the terms and conditions produced those who become the members shall pay initially Rs.5000/- as membership fees and Rs.1700 p.m as instalments for 50 months without default, development charges of Rs.2000/-each has to be paid on 10th, 20th, 30th, 40th and 50th months. The members who wish to pay entire amount will be entitled to 15% discount on sital values. The area of the site under the scheme will be 30’ x 40’ monthly instalments shall be paid on or before 12th of every month. Defaulting member not entitled to participate in the monthly draw. Members who default for 3 consecutive months are disqualified in the scheme; the amounts paid by them will be refunded without interest after forfeiting the membership fees of Rs.5,000/- after completion of the scheme. Members desire to discontinue from the scheme can do so by giving 15 days notice. The lucky draw will be held at 6.00 p.m on 12th of every month. The winner in draw will be allotted a site who need not pay further instalments and amount paid till such time will be taken as cost of the site etc.,
In this complaint complainant has paid Rs.55,500/- to O.P. The receipts issued by O.P. are produced. Now the main grievance of the complainant is that the OPs have failed to materialize the project and failed to refund the amount inspite of repeated requests and demands. There is no response to the legal notice. OPs cannot enhance the consideration illegally without any specific agreement. Hence the defence of the OPs that complainant is a defaulter and has not paid the additional amount cannot be accepted.
13. From the version of OP-4 we can infer that OP-1 company chosen to acquire the lands in the name of their directors and with an understanding for subsequent transfers probably to get over the legal hurdles such an adjustment must have been made. OP 2 and 3 have not chosen to enlighten that aspect of the matter. From contention of OP 4 and 5 it is probable to hold that out of the fund of OP-1 Company the directors have chosen to acquire lands in their own names. Not only the Managing Director even other directors also responsible and answerable as directors of the Company.
14. Further the defence of OPs is that land owners have filed cases against the OP-1 and cases are still pending before the Anekal and other Courts. The entire land is in dispute. The project remained incomplete. When OP is aware that it cannot execute the sale deed; could have fairly refunded the amount to the complainants. Retention of amount by OPs in order to make wrongful gain, inspite of service of legal notice amounts to deficiency in service on its part. We have perused the legal notice. The dream of the complainant to have his own sites remained unfulfilled. We are satisfied that complainant is able to prove deficiency in service on the part of the OPs. Under these circumstances we cannot direct OPs to execute and register the sale deeds as prayed by the complainant. It appears from the evidence on record by way of guarantee and assurance the OP Company must have promised its members that in case the project is not materialize they would issue cash certificates for the consideration received along with interest. However from the evidence on record it is evident that the said very scheme was closed long back. Under these circumstances we are of the considered view that the complainant is entitled for alternative relief of refund of the consideration paid with reasonable interest and for compensation along with litigation cost of Rs.2,000/-. Accordingly we proceed to pass the following:
O R D E R
The complaint is allowed in part.
OPs are directed to refund Rs.55,500/- along with interest at the rate of 9% p.a. from the respective date of payments till realization and pay compensation of Rs.1,00,000/- to the complainant.
The complainant is entitled for litigation cost of Rs.2,000/- from the OP’s.
This order is to be complied within four weeks from the date of its communication.
Send the copy of this order both the parties free of cost
(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 20th day of June 2011.)
PRESIDENT
MEMBER MEMBER
Rk.
