Sivajyothi Township Promoters V/S Meenakshi.S. - Consumer Court Case

Karnataka

Bangalore Urban

CC/08/2868

Meenakshi.S. - Complainant(s)

Versus

Sivajyothi Township Promoters - Opp.Party(s)

T.P.Rajendra

01 Apr 2009

ORDER

BANGALORE URBAN DISTRICT CONSUMER DISPUTES REDRESSLAL FORUM, BANGALORE, KARNATAKA STATE.
Bangalore Urban District Consumer Disputes Redressal Forum, Cauvery Bhavan, 8th Floor, BWSSB Bldg., K. G. Rd., Bangalore-09.
consumer case(CC) No. CC/08/2868

Meenakshi.S.						...........Appellant(s)
Vs.
Sivajyothi Township Promoters M/s.Siva Jyothi Township Promoters M/s.Sivajyothi Township Promoters						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

COMPLAINT FILED: 31.12.2008 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 28th MARCH 2009 PRESENT :- SRI. A.M. BENNUR PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI. A. MUNIYAPPA MEMBER COMPLAINT Nos. 2868, 2869 & 2870/2008 COMPLAINT NO. 2868/08 COMPLAINANT COMPLAINT NO. 2869/08 COMPLAINANT COMPLAINT NO. 2870/08 COMPLAINANT Smt. Meenakshi. S, D/o. S. Swamy, Aged about 32 years, Residing at No. 980, 23rd Main, 36th Cross, 4th T Block, Jayanagar, Bangalore 560 041. Represented by her G.P.A. Holder Sri. S. Swamy (Sadanandaswamy) residing in the same address. Mrs. J. Fatima Premalatha, W/o. Joseph Ajay Kumar, Aged about 56 years, Residing at No. 20, KHM Block, 4th Main, Ganganagar, Bangalore 560 032. Sri. S. Gangadar, S/o. S. Swamy, Aged about 29 years, Residing at No. 980, 23rd Main, 36th Cross, 4th T Block, Jayanagar, Bangalore 560 041. Advocate (T.P. Rajendra Kumar Sungay) V/s. OPPOSITE PARTIES 1. Sri. N.H. Bhaskar Reddy, S/o. Pedda Shiva Reddy, Managing Director, M/s. Sivajyothi Township Promoters, Residing at No. 51, Sivajyothi Nivas 9th Main, 1st Cross, Indiranagar III Stage, Bangalore 560 075. 2. M/s. Siva Jyothi Township Promoters, No. C-17, Kudaremukh Colony, Sarjapur Main Road, Koramangala 2nd Block, Near Madivala Police Station, Bangalore 560 034. 3. Sri. Ramesh Reddy, S/o. P. Ranga Reddy, Partner M/s. Sivajyothi Township Promoters, No. 13/1, Upstairs 2nd Main, 8th Cross, (Old Madiwala) Behind Cauvery Bakery & Sweets, Jai Bhima Nagar, BTM 1st Stage, Bangalore 560 068. Advocate (K. Bhanu Prasad) O R D E R These are the three complaints filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to execute the registered sale deed with respect to the plots allotted to them in their project by accepting the balance instalments and pay a compensation of Rs.50,000/- and for such other reliefs on an allegations of deficiency in service. 2. As the opposite parties are common and the question involved and relief claimed being the same, in the interest of justice in order to avoid the repetition of facts and multiciplity of reasoning, these cases stand disposed of by this common order. 3. The brief averments, as could be seen from the contents of each complaint, are as under: Complainants being lured away with the advertisement and paper publication given by the OP, who claims to be the promoters and developers of layouts consisting of residential plots of various dimensions in and around Bangalore in the name and style Sivajyothi Nagar, thought of purchasing the plot of their choice in the said project. OP accepted their membership and entered into a sale agreement, allotted them the plot and collected the money. The details of plot number, sale agreement date, total cost, cost paid, size of the plot and legal notice date are mentioned in the chart below for convenience sake. Complaint No. Plot No. Sale Agreement Total cost Cost Paid Plot Size Legal Notice 2868/08 8 22.04.2002 Rs.8,64,000/- Rs.3,12,000/- upto March 05 60X80 14.07.08 2869/08 17 01.07.2002 Rs.7,65,000/- Rs.82,000/- upto March 05 50X80 14.07.08 2870/08 1 22.04.2002 Rs.8,64,000/- Rs.3,12,000/- upto March 05 60X80 14.07.08 Though complainants paid substantial amount with respect to the plots allotted to them and even though they are willing and ready to pay the remaining balance, OP did not complete the said project. The repeated requests and demands made by the complainants to complete the project and register a plot in their favour by accepting the remaining balance even by causing the legal notice, went in futile. Though complainants invested their hard earned money, they are unable to reap the fruits of their investment because of the hostile attitude on the part of the OP. For no fault of theirs, they were made to suffer both mental agony and financial loss. Under such circumstances complainants felt the deficiency in service. Hence they are advised to file these complaints and sought for the relief accordingly. 4. On appearance, OP filed the version in all the three complaints, the defence set out by the OP is almost same and identical. According to the OP though they floated the said project and intended to complete it well within a stipulated time, there aroused some legal hurdles. It is further contended that the complaints are barred by time. The relief now sought by each one of these complainants is almost as relief of enforcement of an agreement to sale. So complainants have to file a comprehensive Civil Suit for specific performance before the competent Civil Court. The other allegations made in the complaints are all false and frivolous. There is no deficiency in service on the part of the OP. The complaints are devoid of merits. Among these grounds, OP prayed for the dismissal of the complaint. 5. In order to substantiate the complaint averments, the each one of these complainants filed their affidavit evidence and produced some documents. OP has also filed the affidavit evidence. Then the arguments were heard. 6. In view of the above said facts, the points now that arise for our consideration in these complaints are as under: Point No. 1 :- Whether the complainants have proved the deficiency in service on the part of the OP? Point No. 2 :- If so, whether the complainants are entitled for the reliefs 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 at dispute that the each one of these complainants have become the members of the project floated by the OP in the name and style Shivajyothi Nagar. OP entered into a sale agreement with respect to a plot selected by the complainants to sell the same for a total cost as noted in the chart. Then each one of these complainants went on paying the cost of the said plot in monthly instalments. The pass book issued by the OP speaks to the said fact. The sale agreement copy is also produced. The measurement of the site is not at dispute. Now the grievance of the complainants is that they made substantial payment by the end of March 2005. Though OP executed the sale agreement in the month of April and July 2002, so for so good OP has not executed the registered sale deed with respect to the said plot, even though complainants are ready and willing to pay the remaining balance. Hence each one of these complainants caused the legal notice on 14.07.2008. Again there was no response. Hence they felt the deficiency in service on the part of the OP. 9. On going through the pleadings of the parties and also having taken into consideration the total cost of the plot, what prevented the complainants to pay only the part payment for all these months and years is not known. If really they are interested to get registered sale deed with respect to the said plot, they would have caused the notice to the OP expressing their willingness and readiness to perform their part of the contract. When they came to know of the fact that OP failed to complete the said project may be by the end of 2005 or beginning of 2006, but still they kept mum right up to July 2008. There is no satisfactory explanation for this delay in asserting their legal right. Of course OP has not disputed the fact of receipt of the said amount from the complainant. OP retained the said huge amount for all these years without registering the plot, thereby accrued the wrongful gain to self and caused the wrongful loss to the complainant. 10. If OP is sure that it is unable to complete the said project in time because of the legal hurdles and litigations, with all fairness OP would have refunded the said plot value immediately. But no such steps are taken. Here we find the deficiency in service. Of course OP has contended that complaints are barred by time. We do not find force in the said defence because OP accepted the membership of the complainants, collected the part payment with respect to a plot executed the sale agreement and promised to register the site, till OP execute the registered sale deed with respect to the site in favour of the complainants, complainants will get the recurring cause of action. The other defence of the OP that complainant has to file a regular Civil Suit for enforcement of the agreement and seek a decree for specific performance of contract also does not hold force. It is the choice of the complainant. OP cannot dictate the terms, section 3 of the C.P. Act provides the relief to the complainants. 11. In view of the discussions made by us in the above said paras, the evidence of the complainants appears to be very much natural, cogent and consistent, finds support from the contents of the undisputed documents. Of course though complainants have sought for registration of the said plot by accepting the remaining plot value. Complainants have not produced the document to show that the said project Sivajyothinagar is completed, it is approved by the statutory authority and such plots are being free from all encumbrances and are at the disposal of the OP. In absence of such basic proof, the prayer of the complainants for issuance of a direction to OP to register a plot by accepting remaining money rather cannot be granted. 12. Having taken into consideration of the facts and circumstances of the case, though complainants have not sought for the refund of the plot value, which they have paid in our view the justice will be met by directing the OP to refund the same because there is no immediate prosperity of OP completing the said project in time and register a plot in favour of the complainants. Complainants cannot be kept waiting indefinitely. With these observations we find these are the fit cases, wherein the complainants deserves certain relief. Accordingly we answer point nos.1 and 2 and proceed to pass the following: O R D E R The complaints are allowed. In complaint No. 2868/2008 OP is directed to refund Rs.3,12,000/- together with interest at the rate of 12% p.a. from March 2005 till realization and pay a compensation of Rs.1,00,000/- as a guidance value of the plot along with a litigation cost of Rs.1,000/- to the complainant. In complaint No. 2869/2008 OP is directed to refund Rs.82,000/- together with interest at the rate of 12% p.a. from March 2005 till realization and pay a compensation of Rs.1,00,000/- as a guidance value of the plot along with a litigation cost of Rs.1,000/- to the complainant. In complaint No. 2870/2008 OP is directed to refund Rs.3,12,000/- together with interest at the rate of 12% p.a. from March 2005 till realization and pay a compensation of Rs.1,00,000/- as a guidance value of the plot along with a litigation cost of Rs.1,000/- to the complainant. This order is to be complied within 4 weeks from the date of its communication. The original order shall be kept in the file of complaint No. 2868/2008 and a copy of it shall be placed in respective files. (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 28th day of March 2009.) MEMBER MEMBER PRESIDENT p.n.g.

COMPLAINT FILED: 31.12.2008 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 28th MARCH 2009 PRESENT :- SRI. A.M. BENNUR PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI. A. MUNIYAPPA MEMBER COMPLAINT Nos. 2868, 2869 & 2870/2008 COMPLAINT NO. 2868/08 COMPLAINANT COMPLAINT NO. 2869/08 COMPLAINANT COMPLAINT NO. 2870/08 COMPLAINANT Smt. Meenakshi. S, D/o. S. Swamy, Aged about 32 years, Residing at No. 980, 23rd Main, 36th Cross, 4th T Block, Jayanagar, Bangalore 560 041. Represented by her G.P.A. Holder Sri. S. Swamy (Sadanandaswamy) residing in the same address. Mrs. J. Fatima Premalatha, W/o. Joseph Ajay Kumar, Aged about 56 years, Residing at No. 20, KHM Block, 4th Main, Ganganagar, Bangalore 560 032. Sri. S. Gangadar, S/o. S. Swamy, Aged about 29 years, Residing at No. 980, 23rd Main, 36th Cross, 4th T Block, Jayanagar, Bangalore 560 041. Advocate (T.P. Rajendra Kumar Sungay) V/s. OPPOSITE PARTIES 1. Sri. N.H. Bhaskar Reddy, S/o. Pedda Shiva Reddy, Managing Director, M/s. Sivajyothi Township Promoters, Residing at No. 51, Sivajyothi Nivas 9th Main, 1st Cross, Indiranagar III Stage, Bangalore 560 075. 2. M/s. Siva Jyothi Township Promoters, No. C-17, Kudaremukh Colony, Sarjapur Main Road, Koramangala 2nd Block, Near Madivala Police Station, Bangalore 560 034. 3. Sri. Ramesh Reddy, S/o. P. Ranga Reddy, Partner M/s. Sivajyothi Township Promoters, No. 13/1, Upstairs 2nd Main, 8th Cross, (Old Madiwala) Behind Cauvery Bakery & Sweets, Jai Bhima Nagar, BTM 1st Stage, Bangalore 560 068. Advocate (K. Bhanu Prasad) O R D E R These are the three complaints filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to execute the registered sale deed with respect to the plots allotted to them in their project by accepting the balance instalments and pay a compensation of Rs.50,000/- and for such other reliefs on an allegations of deficiency in service. 2. As the opposite parties are common and the question involved and relief claimed being the same, in the interest of justice in order to avoid the repetition of facts and multiciplity of reasoning, these cases stand disposed of by this common order. 3. The brief averments, as could be seen from the contents of each complaint, are as under: Complainants being lured away with the advertisement and paper publication given by the OP, who claims to be the promoters and developers of layouts consisting of residential plots of various dimensions in and around Bangalore in the name and style Sivajyothi Nagar, thought of purchasing the plot of their choice in the said project. OP accepted their membership and entered into a sale agreement, allotted them the plot and collected the money. The details of plot number, sale agreement date, total cost, cost paid, size of the plot and legal notice date are mentioned in the chart below for convenience sake. Complaint No. Plot No. Sale Agreement Total cost Cost Paid Plot Size Legal Notice 2868/08 8 22.04.2002 Rs.8,64,000/- Rs.3,12,000/- upto March 05 60X80 14.07.08 2869/08 17 01.07.2002 Rs.7,65,000/- Rs.82,000/- upto March 05 50X80 14.07.08 2870/08 1 22.04.2002 Rs.8,64,000/- Rs.3,12,000/- upto March 05 60X80 14.07.08 Though complainants paid substantial amount with respect to the plots allotted to them and even though they are willing and ready to pay the remaining balance, OP did not complete the said project. The repeated requests and demands made by the complainants to complete the project and register a plot in their favour by accepting the remaining balance even by causing the legal notice, went in futile. Though complainants invested their hard earned money, they are unable to reap the fruits of their investment because of the hostile attitude on the part of the OP. For no fault of theirs, they were made to suffer both mental agony and financial loss. Under such circumstances complainants felt the deficiency in service. Hence they are advised to file these complaints and sought for the relief accordingly. 4. On appearance, OP filed the version in all the three complaints, the defence set out by the OP is almost same and identical. According to the OP though they floated the said project and intended to complete it well within a stipulated time, there aroused some legal hurdles. It is further contended that the complaints are barred by time. The relief now sought by each one of these complainants is almost as relief of enforcement of an agreement to sale. So complainants have to file a comprehensive Civil Suit for specific performance before the competent Civil Court. The other allegations made in the complaints are all false and frivolous. There is no deficiency in service on the part of the OP. The complaints are devoid of merits. Among these grounds, OP prayed for the dismissal of the complaint. 5. In order to substantiate the complaint averments, the each one of these complainants filed their affidavit evidence and produced some documents. OP has also filed the affidavit evidence. Then the arguments were heard. 6. In view of the above said facts, the points now that arise for our consideration in these complaints are as under: Point No. 1 :- Whether the complainants have proved the deficiency in service on the part of the OP? Point No. 2 :- If so, whether the complainants are entitled for the reliefs 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 at dispute that the each one of these complainants have become the members of the project floated by the OP in the name and style Shivajyothi Nagar. OP entered into a sale agreement with respect to a plot selected by the complainants to sell the same for a total cost as noted in the chart. Then each one of these complainants went on paying the cost of the said plot in monthly instalments. The pass book issued by the OP speaks to the said fact. The sale agreement copy is also produced. The measurement of the site is not at dispute. Now the grievance of the complainants is that they made substantial payment by the end of March 2005. Though OP executed the sale agreement in the month of April and July 2002, so for so good OP has not executed the registered sale deed with respect to the said plot, even though complainants are ready and willing to pay the remaining balance. Hence each one of these complainants caused the legal notice on 14.07.2008. Again there was no response. Hence they felt the deficiency in service on the part of the OP. 9. On going through the pleadings of the parties and also having taken into consideration the total cost of the plot, what prevented the complainants to pay only the part payment for all these months and years is not known. If really they are interested to get registered sale deed with respect to the said plot, they would have caused the notice to the OP expressing their willingness and readiness to perform their part of the contract. When they came to know of the fact that OP failed to complete the said project may be by the end of 2005 or beginning of 2006, but still they kept mum right up to July 2008. There is no satisfactory explanation for this delay in asserting their legal right. Of course OP has not disputed the fact of receipt of the said amount from the complainant. OP retained the said huge amount for all these years without registering the plot, thereby accrued the wrongful gain to self and caused the wrongful loss to the complainant. 10. If OP is sure that it is unable to complete the said project in time because of the legal hurdles and litigations, with all fairness OP would have refunded the said plot value immediately. But no such steps are taken. Here we find the deficiency in service. Of course OP has contended that complaints are barred by time. We do not find force in the said defence because OP accepted the membership of the complainants, collected the part payment with respect to a plot executed the sale agreement and promised to register the site, till OP execute the registered sale deed with respect to the site in favour of the complainants, complainants will get the recurring cause of action. The other defence of the OP that complainant has to file a regular Civil Suit for enforcement of the agreement and seek a decree for specific performance of contract also does not hold force. It is the choice of the complainant. OP cannot dictate the terms, section 3 of the C.P. Act provides the relief to the complainants. 11. In view of the discussions made by us in the above said paras, the evidence of the complainants appears to be very much natural, cogent and consistent, finds support from the contents of the undisputed documents. Of course though complainants have sought for registration of the said plot by accepting the remaining plot value. Complainants have not produced the document to show that the said project Sivajyothinagar is completed, it is approved by the statutory authority and such plots are being free from all encumbrances and are at the disposal of the OP. In absence of such basic proof, the prayer of the complainants for issuance of a direction to OP to register a plot by accepting remaining money rather cannot be granted. 12. Having taken into consideration of the facts and circumstances of the case, though complainants have not sought for the refund of the plot value, which they have paid in our view the justice will be met by directing the OP to refund the same because there is no immediate prosperity of OP completing the said project in time and register a plot in favour of the complainants. Complainants cannot be kept waiting indefinitely. With these observations we find these are the fit cases, wherein the complainants deserves certain relief. Accordingly we answer point nos.1 and 2 and proceed to pass the following: O R D E R The complaints are allowed. In complaint No. 2868/2008 OP is directed to refund Rs.3,12,000/- together with interest at the rate of 12% p.a. from March 2005 till realization and pay a compensation of Rs.1,00,000/- as a guidance value of the plot along with a litigation cost of Rs.1,000/- to the complainant. In complaint No. 2869/2008 OP is directed to refund Rs.82,000/- together with interest at the rate of 12% p.a. from March 2005 till realization and pay a compensation of Rs.1,00,000/- as a guidance value of the plot along with a litigation cost of Rs.1,000/- to the complainant. In complaint No. 2870/2008 OP is directed to refund Rs.3,12,000/- together with interest at the rate of 12% p.a. from March 2005 till realization and pay a compensation of Rs.1,00,000/- as a guidance value of the plot along with a litigation cost of Rs.1,000/- to the complainant. This order is to be complied within 4 weeks from the date of its communication. The original order shall be kept in the file of complaint No. 2868/2008 and a copy of it shall be placed in respective files. (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 28th day of March 2009.) MEMBER MEMBER PRESIDENT p.n.g.