BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BAGALKOT.

C.C.No.52/2017

Date of filing: 12/06/2017

Date of disposal: 10/01/2019

P R E S E N T :-

- V/S -

JUDGEMENT

By Smt. Sharada. K. President.

1.      This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as Act) against the Opposite Parties (in short the “OPs”) directed to recovery of Rs.2,00,000/- towards advance payment of plot with interest @ 18% p.a. from 13.07.2013 till realization which amount to Rs.1,44,000/- a total of Rs.3,44,000/- till the date of filing this complaint and future interest @ 18 % p.a. till realization and pay Rs.50,000/- towards compensation for mental agony and Rs.50,000/- towards litigation cost and any other reliefs etc.,

2.      The facts of the case in brief are that;

          The case of the complainant is that, the complainant is primary school teacher, after coming to the knowledge by way of broacher in Vijaya Karnataka daily news paper, the complainant got impressed by the advertisement made by OP.No.1 & 2, thought about buying the property in one of OP.No.1 & 2 township by name Brindavan Paradise III, situated at Dharwad. As per OP.No.1 & 2 advertisement there are several sites of 30X40, 35X50, 40X60, 50X80 bearing from 1200 Sq.ft to 4000 Sq.fts. and further the complainant has impressed OP.No.1 & 2 advertisement having several attractive facilities and he has approached OPs office, after enquiry, he has decided to buy plot measuring 30X40 i.e. 1200 Sq.fts and he has filled the form on dtd:13.07.2013 given by the OP.No.1 & 2 and made an advance payment of Rs.2,00,000/- through cheque No.346979 dtd:13.07.2013 through S.B. A/c in OP.No.3 Bank with due information. As per the application form, the OP.No.1 & 2 had issued receipt No.4953 and the said amount is being credited to the OP.No.1 & 2 A/c’s and debited to the complainant’s S.B. A/c on dtd:16.07.2013 and OP.No.1 & 2 have granted Plot No.140 in Paradise No.3 totally measuring about 1200 Sq.fts and the total cost of the plot is Rs.7,80,000/- at the rate of 650 per Sq.fts.    

It is further contended that, after the payment made by the complainant, he has frequently used to make telephonic call to OP.No.1 & 2, but OP.No.1 & 2 had assured that, the proposed agreement will be entered in to when the plots were fully developed and ready for possession and the plots will ready in 1 ½ to 2 years, believing in the words of OP.No.1 & 2, the complainant was kept mum and later the complainant has enquiry regarding progress in the work, there was no positive response, but till today no plot has been allotted to the complainant and no agreement has been entered by the OP.No.1 & 2 and one or the other reasons for inability to allot the site to the complainant, it attracts the deficiency in service and also adopting un-fair trade practice.

Finally, the complainant had issued legal notice through his counsel to the OP.No.1 & 2 through RPAD on dtd:01.03.2017 and the same was served to the OP.No.1 & 2, but till today the OP.No.1 & 2 have not responded for the same, these attitude and acts of the OP.No.1 & 2, the complainant is put to inconvenience and hardship. Hence, having no alternative, the complainant is constrained to file this complaint.

3.         The Forum registered a case and issued notice to the OP.No.1 & 2. After service of the notice, the Op.No.1, has appeared through his Counsel and resisted the claim of the complainant by filing his written version and Op.No.2 notice was duly served. But, the Op.No.2 has not appeared. Hence, OP.No.2 is placed ex-parte and OP.No.3 is await notice. Later, the complainant has filed memo and stating that, the OP.No.3 is a formal party and he has not claim against this OP.No.3. Hence, in view of memo, the claim against OP.No.3 is discharged to the instant case.

          Brief fact of the Written Version of OP.No.1

The OP.No.1 contended that, the complaint is not tenable in law as well as facts of the case and contents of complaint is specifically denied by this OP and it is true that, the OP.No.1 & 2 are running the business in the name and style of M/s. Brindavan Citi Developers and they will purchase the agriculture lands and it will convert into non-agriculture and they will make the plots as per the norms of Hubballi-Dharwad Urban Development Authority and they will alienate those plots various customers. In the year 2011 Huballi-Dharwad Urban Development Authority has started enhancement of comprehensive development plan. Due to the enhancement of CDP, Huballi-Dharwad Urban Development Authority has stopped to accept the change of land use application. In the above said matter the suit property will come under Agriculture zone. Hence, the application filed by the OP.No.1 & 2 for change of land use from agriculture zone to residential zone was rejected.

It is further contended that, without obtaining the permission from Huballi-Dharwad Urban Development Authority, the OP.No.1 & 2 will not make the plots. Due to the Government Laws the delay was caused, there is no fault of the OP.No.1 & 2. Due to the acts of the Huballi-Dharwad Urban Development Authority, the OP.No.1 & 2 are under loss and they are unable to return the amount received by complainant, if six months time is given, then the OP.No.1 & 2 will return the earnest money to the complainant with interest @ 6 % p.a. Hence, there is no deficiency of service on the part of the OP.No.1 & 2 and prayed for dismissal of the complaint with costs.         

4.      The complainant has filed his chief affidavit along with 9 documents which are as follows;

The OP.No.1 neither filed affidavit nor produced any  documents. Hence, affidavit of OP.No.1 is taken as nil.

5.      Now on the basis of above said pleadings, written argument of complainant, oral and documentary evidence, the following points arises for adjudications are as follows;

Our Answer to the above points are:-

Point No.1 – Affirmative.

Point No.2 – Partly Affirmative.

Point No.3 - As per the final order for the following:

R E A S O N S

6.      POINT NO.1 & 2:        Both the points interlink and identical, we proceed together to avoid the reputation of fact.

The complainant filed this complaint against the OP.No.1 & 2 for refund of Rs.2,00,000/- which has been paid by complainant to the OP.No.1 & 2 for purchase of plot in the scheme of Brindavana city. But, OP.No.1 & 2 have failed to provide a plot in time, as per their terms and conditions.

On the other hand, OP.No.1 & 2 admitted that, the amount is received by him, due to the inconvenience made by local authorities, due to the enhancement of CDP, Huballi-Dharwad Urban Authority has stopped to accept the application for Land Conversion. In the above said matter, the property come under agricultural zone. Hence, the application filed by the OP.No.1 & 2 for conversion of land from agriculture zone to residential zone was rejected. Hence, OP.No.1 & 2 are ready to return the amount along with interest @ 6 % p.a. to the complainant.

It is an undisputed fact that, OP.No.1 & 2 had received Rs.2,00,000/- and they are ready to pay the amount with interest @ 6 % p.a. but, Complainant has prayed that, OP.No.1 & 2 directed to pay Rs.2,00,000/- with interest
@ 18% p.a. and other reliefs, the requirement of discussion is that, on quantum of interest here, the complainant filed various citations on the interest which are all very much attracted to this case, the matter has been discussed in details in an order passed by Hon’ble National Commission held as under;

2018 (4) CPR 619 (NC) National Consumer Disputes Redressal Commission, New Delhi. V.K Jain. Presiding Member

GovindanRaghavan                           ….Complainant

Versus

Pioneer urban Land and Infrastructure Ltd.         …Opp Party

Consumer Case No.239 of 2017

Decided on 23.10.2018

          Consumer Protection Act, 1986 – Complaint – section -21- In complaint 238/2017, the complainant book a residential flat with the Op in a project namely ‘Araya Complex’ which the OP was to develop in Sector – 62 of Gurgaon – The booking was made on 17.11.2011 and Unit No.C-1702 in Tower –C of the aforesaid project was allotted to the Complainants for a consideration of Rs.5,11,01,238/- Though substantial amount were paid. Possession was not handed over to the complainant – Hence, Complaint was filed for refund of the amount of Rs.4,43,99,622/- which they have already paid to the OP – In Complaint 239/2017, Complainant booked a residential flat with OP in the a foresaid project namely ‘Araya Complex’, on 27.02.2012 and unit No.A-1802 was allotted to him for a total consideration Rs.4,83,25,280/- an identical grievance that, the construction was not completed and possession was not offered to him despite he having already paid Rs,4,48,43,026/- Op resist the complaints on various grounds – heard the councils, peruse the document’s and the records, condition of OP that due to reasons beyond their control he project could not be completed cannot be accepted and allow the complaint directing the OP to refund the amount with simple interest @ Rs.10.07 % pa from the date of payment of the amount. Complaint is allowed.

          As per the written version filed by the OP.No.1, OP.No.1 is accepted to return back the amount within 6 months with interest @ 6 % p.a. to the complainant and further the OP.No.1 has filed this written version on 14.07.2017, if this OP is really ready to pay the amount to the complainant, he himself had paid the amount after six months while the case was in trial at Forum itself, but this OP had not do so, it is clear that, this OP made a deficiency in service and liable to pay the interest to the complainant.

          Relying upon the aforesaid citation, we come to the conclusion that, OP.No.1 & 2 are liable to pay interest @ 9% p.a. to the complainant. Hence we answer to Point No.1 in affirmative and Point No.2 is in partly affirmative.

7.       POINT NO. 3:       In view of our findings on the above points, in the result, we pass the following: 

 O R D E R

1. The Complaint is partly allowed.

2. Further OP.No.1 & 2 are directed to return the amount of Rs.2,00,000/- to the Complainant alongwith interest
   @ 9 % p.a. from the date of receiving the amount within 30 days failing which OP.No.1 & 2 are liable to pay interest @ 18 % p.a. from the date of receiving the amount till realization.

3. Further OP.No.1 & 2 are directed to Pay Rs.5,000/- towards mental agony, harassment and Rs.1,000/- towards litigation charges.

4. Send the copies of this order to the parties free of cost.

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in the Open Forum on this 10^th day of January, 2019).