Date of Filing: 08/08/2011
Date of Order: 26/08/2011
BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE - 20
Dated: 26th DAY OF AUGUST 2011
PRESENT
SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT
SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER
SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER
COMPLAINT NO. 1481 OF 2011
Smt. Geeta Shastri,
W/o. Ganapathi S. Shastri,
Aged About 39 years,
No.281, 20th Main, Vijayanagar,
BANGALORE.
(Rep. by Advocate Shivakumar.N.) Complainant.
-V/s-
(1) Rajesh M.S,
Property Link, No.87,
Pizzahut Building, Basaveshwaranagar,
BANGALORE.
(2) Manjesh R. Karanth,
Bhuvanashree Welfare & Developers
Association, No.417/1, Near Ayyappa Swamy
Temple, Jakkur Layout, Yelahanka,
Bangalore. Opposite parties.
BY SRI.H.V.RAMACHANDRA RAO, PRESIDENT
ORDER
The brief antecedents that lead to the filing of the complainant made Under Section 12 of the Consumer Protection Act, seeking direction to the opposite party to pay a sum of Rs.3,90,000/-, are necessary:-
In the end of 2007 the opposite party No.1 had made an offer to the public to invest amounts and get sites in the layout called Chandanashree Enclave developed by the second opposite party. Accordingly the husband of the complainant contacted the opposite party No.1 who has told that the conversion of the land is in progress, they have to pay Rs.4,20,000/- in three equal installments with respect to a site measuring 30’ x 40’. Accordingly the complainant’s husband paid Rs.50,000/- on 26.01.2008 to opposite party No.1 and wanted to purchase site No.33. On 17.02.2008 another sum of Rs.90,000/- was paid and an agreement was entered in to between the parties on 18.02.2008. On 09.08.2008 another sum of Rs.1,40,000/- the second installment was paid. The third installment has to be paid at the time of registration. Later it was told that the conversion has not been done. Later the complainant came to know that site No.33 has been registered in the name of one Vidhyadhar Kulkarni. Hence the complainant and her husband requested the opposite party to return the money with interest. The complainant issued a notice to the opposite parties on 29.06.2011 as it has not been paid this complaint is filed seeking refund of Rs.2,80,000/- with interest and compensation of Rs.1,00,000/- with costs of Rs.10,000/-.
2. The matter was posted for hearing. As none appeared perused the records.
3. The points that arise for our consideration are:-
- Whether there is any prima facie case of deficiency in service?
- What order?
4. Our findings on the above points are:-
Point (A):In the Negative
Point (B): As per the final order
For the following:-
REASONS
POINT (A) to (B):-
5. The entire case of the complainant revolves round on the agreement dated: 18.02.2008 and not on any other thing. The relevant clause of the agreement reads thus:-
1. The Vendors shall sell and the Purchaser shall buy the schedule property more fully described in the Schedule hereunder for a total sale consideration amount of Rs.4,20,000/-.
2. The purchaser has paid an advance a sum of Rs.50,000/- to the Vendor by way of cheque bearing No.845735 dated: 26.01.2008. (ING VYSYA BANK Ltd). Bangalore. & Rs.90,000/- to the Vendor by way of cheque bearing No.845738 dated: 17.02.2008 (ING VYSYA BANK Ltd). Bangalore. The second payment of Rs.1,40,00/- shall be made to the vendor on or before 18th may 2008. The balance payment of Rs.1,40,000/- shall be made to the vendor at the time of registration of sale deed of the Schedule property.
3. The vendor shall execute the registration of sale deed of the Schedule property. Within six months from today. If vendor fails to execute the registration of sale deed of the Schedule property in six months and a grace period of further six months i.e. 12 months from today he shall refund the amount paid by the purchaser with bank interest.
4. The purchaser is at liberty to purchase the Schedule property either in his name or in the name of their nominee.
5. The Vendors hereby assure the purchaser that the Schedule property is free from all encumbrances, mortgages, and charges, it is further assured that the schedule property is not subject to any acquisitions, proceedings, court litigation and court attachment.
6. The Vendors further assures that he is not entered in to any agreement of sale or part thereof nor they have created any charges over the schedule property.
7. This agreement shall be binding on all persons claiming benefit under this agreement.
8. The Vendors have agreed to indemnify the purchaser against all losses and damages with the purchaser may sustain on account of the breach of any of the conditions and shall keep the purchaser indemnified from any or against ay defects, flow or deficiency in title or any mistake or deficiency in extent, description or other particulars of the Schedule property.
9. The vendors shall deliver to the purchaser all original title deeds in respect of the schedule property on the date of the registration of the sale deed or upon completion of the sale.
10. If the vendor fails to get the sale deed executed and registered in favour of the purchase or nominees, then the purchaser may specifically enforce this agreement at the costs and expenses of the Vendors in addition to claiming damages from the Vendors.
11. All the expenses of stamp duty, registration legal etc., otherwise for the purchase of registration of the sale deed shall be borne and paid by purchaser only.
12. The Vendors agreed to provide the water connection, Electricity Connection and open drainage to the above said Property.
That is to say the sale price of the site No.33 already formed in the land is Rs.4,20,000/-. Out of which the complainant has paid Rs.2,80,000/- and the balance has to be made at the time of the registration of the sale deed. The sale deed shall be registered within a maximum period of 12 months from that date. The complainant can purchase either in her name or in the name of anybody. This agreement is made between the second opposite party and the complainant. Now the complainant says that he has paid the amount to the first opposite party, but the agreement says something else. Anyway according to the agreement the complainant is entitled to get the opposite party No.2 to execute sale deed within one year from 18.02.2009. From 18.02.2008 till 18.02.2009 the complainant has to get the sale deed executed in her name, but from 18.02.2008 till 18.02.2009 no correspondence took place between the parties. The cause of action for this complaint arose to the complainant is on 18.02.2010 and the complainant should have filed this complaint on or before 18.02.2010, but this complaint is filed on 08.08.2011, hence it is barred by time, so for as complaint under the Consumer Protection Act is concerned. Merely the complainant has issued a notice on 29.06.2011 it does not mean the running of limitation has stopped or enlarged. The notice neither enlarge the limitation nor enhance the limitation. In any event the entire thing depends on the contract of 18.02.2008 and its breach, who has committed the breach of this thing are to be decided in a Civil Court. There is no dispute coming with the purview of the Consumer Protection Act. If the opposite party has committed breach the complainant could approach the Civil court as under the agreement dated: 18.02.2008 against the second opposite party or anybody whom he shall deem fit for which this order will not come in the way. Hence we hold the above points accordingly and proceed to pass the following:-
ORDER
1. The complaint is Dismissed. No order as to costs.
2. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
3. Send a copy of this order to the complainant free of costs, immediately.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 26th Day of August 2011)
MEMBER MEMBER PRESIDENT
