COMPLAINTS FILED ON:30.11.2011

DISPOSED ON:21.04.2012

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

21^st DAY OF APRIL-2012

  PRESENT:-  SRI. B.S. REDDY                   PRESIDENT       

                      SRI.A.MUNIYAPPA                     MEMBER              

COMPLAINT Nos. 2172/2011 & 2212/2011

COMMON ORDER

SRI. B.S.REDDY, PRESIDENT

Both these complaints are filed U/s. 12 of the Consumer Protection Act of 1986 by the respective complainants seeking direction against the Ops to refund the amounts paid towards allotment of sites and to pay compensation on the allegations of deficiency in service on the part of the OPs.

Since OPs are common in both these complaints, the questions involved and the relief’s claimed is similar, in order to avoid the repetition of facts and multiplicity of reasoning’s both these complaints are stand disposed of by this common order.

2. The case of the complainants to be stated in brief is that:

The complainant in complaint No.2172/2011 became member of OP1 by paying membership fee of Rs.2,000/- under receipt No.2531 dt.31.03.2008 and he was allotted membership No.R.1025. The complainant in complaint No.2212/2011 became member of OP1 by paying membership fee of Rs.2,000/- on 31.03.2008 and she was allotted the membership No.R1024. Both these complainants applied for sites measuring 40 X 60 and 30 X 40 feet respectively in the proposed layout called “VAYUJA COUNCIL GARDENS” situated at Hoovinayakanhalli Village, Jala Hobli, Bangalore Rural District. The complainant in complaint No.2172/2011 paid an amount of Rs.50,000/- by cash and Rs.1,50,000/- through cheque dt.31.03.2008 and further he paid an amount of Rs.5,20,000/- through cheque on 29.05.2008. Ops executed agreement deed on 30.05.2008 acknowledging the receipt of total amount of Rs.7,20,000/- from the complainant and they have also issued the receipt.

3.   The complainant in complaint No.2212/2011 paid an amount of Rs.1,00,000/- by cash on 31.03.2008 and again she paid an amount of Rs.1,80,000/- by way of cash and Rs.80,000/- by way of cheque dt.29.05.2008.   Thus she paid totally an amount of Rs.3,60,000/- to the Ops. Ops executed agreement deed acknowledging the receipt of the amount of Rs.3,60,000/. OP1 had sent the reminder Letter dt.08.08.2008 to pay the amount of Rs.3,60,000/- immediately as they were compelled to revise the site rates in future. OP1 had sent the confirmation letter to complainants for allotment of site in first phase of “VAYUJA COUNCIL GARDENS” layout after getting the approval from the concerned authority. On 29.05.2010 Ops had sent letter to the complainants stating that since the land has been notified by KAIDBA and they offered to allot the sites in other two on – going projects at Alambandi Village, Malur Taluk and near at International Airport, Bangalore which is yet to be approved. But the complainants are not interested in other projects. The complainants served letter dt.31.01.2011Ops to refund the amount paid with interest. Ops failed to fulfill their obligations by forming the layout and allotting the sites as assured and they have also failed to refund the amount with interest. Thus the complainants were compelled to approach this Forum with these complaints.

4.   In complaint Nos.2212/2011, Op2 remained ex-parte and OP1 filed version. In complaint No.2172/2011 though both these Ops appeared through their counsel failed to file the version later I.A. with version filed, the same was allowed on payment of costs of Rs.200/-. Ops failed to pay the cost they also not filed the affidavits.

5.   In the version filed by the Ops it is contended that the complainants have deposited the amounts as claimed in the complaints and applied for the sites proposed to be formed at “VAYUJA COUNCIL GARDENS” and Ops have executed agreement deeds. Op1 entered into an agreement with OP2 and approached various land owners for purchase of lands and were waiting for the approval from the appropriate authority. But the said land was acquired by the KAIDBA and the farmers collected the compensation amount. Thus the Ops have incurred a huge loss. Ops are not deliberately postponing the registration and there is no deficiency in service. The delay in allotting the site is due to the act of state and beyond the control of these Ops and hence the Ops are not liable to pay any compensation. The sale transaction was subject to conversion of land and the approval from the appropriate authority. Thus the complainants are not entitled to seek for the execution of the sale deed until the approval. There is no cause of action for the above complaints.   The complaints are barred by limitation. The complainants are not a ‘Consumer’ within the meaning of the Consumer Protection Act, 1986.   There is no deficiency in service on the part of the Ops. Hence it is prayed to dismiss the complaints.

6.   The complainants in order to substantiate complaint averments, each of the complaints filed affidavit evidence. Ops have not filed the affidavit evidence.

7.   Arguments from complainant’s heard, OPs side taken as heard.

8.   Points for consideration are:

      Point No.1:-  Whether the complainants proved the          

                           deficiency in service on the part of

                            the OPs?

Point No.2:- Whether the complainants are entitled

                    for the reliefs now claimed?

      Point No.3:- To what Order?

9. We record out findings on the above points:

               Point No.1:- Affirmative,

               Point No.2:- Affirmative in part,

               Point No.3:- As per final Order.

R E A S O N S

10. At the out set it is not in dispute that both these complainants being the husband and wife became the members of Op1 Forum by paying the prescribed membership fee of Rs.2,000/- on 31.03.2008 and Op1 allotted membership No.1025 and 1024 respectively. Both these complaints applied for the sites measuring 40 X 60 and 30 X 40 feet proposed to be formed in “VAYUJA COUNCIL GARDENS” situated at Hoovinayakanhalli Village, Jala Hobli, Bangalore Rural District. Totally an amount of Rs.7,20,000/- was received from the complainant in complaint No.2172/2011 and an amount of Rs.3,60,000/- was received from the complainant in complaint No.2212/2011 by Ops towards initial sale consideration of the proposed sites to be allotted. Both these Ops executed agreement deeds on 30.05.2008 incorporating the terms and conditions with regard to the allotment of site and execution of the registered sale deeds. Ops could not form the proposed layout but they offered the sites in other two on going projects near Malur and International Airport, Bangalore. But the complainants are not prepared to accept the said proposal. The only defence of the Ops that they approached various farmers for the proposed layout and they were waiting for approval from the appropriate authority but those lands were acquired by the KAIDBA and the farmers received the compensation in respect of the said lands as such Ops have incurred huge loss. Merely because the lands proposed for the layout were acquired and compensation has been received by the land owners, these complainants cannot be deprived of their rights to get back the initial sale consideration with interest by way of compensation. The complainants cannot be completed to take the sites in some other projects for which they are not interested. The act of Ops neither forming the layout and allotting the sites nor refunding the amount with interest by way of compensation amounts to deficiency in service.

11. There is no merit in the contention that these complainants are not a ‘Consumer’ as defined under the Act and the complaints are barred by limitation. When once Ops have accepted deposits towards allotment of sites, till the sites are allotted or the amount is refunded recurring cause of action arises to claim the relief’s. Under these circumstances, we are of the view that the complainants are entitled for the relief’s for refund of the amount paid with interest at 18% p.a. by way of compensation along with litigation cost of Rs.2,000/- each. Accordingly, we proceed to pass the following:

O R D E R

The complaints filed by the complainants are allowed in part.

 In complaint No.2172/2011 Ops are directed to refund an amount of Rs.7,20,000/- with interest at 18% p.a. from the respective date of payments, till the date of realization and pay litigation cost of Rs.2,000/- to the complainant.

In complaint No.2212/2011 Ops are directed to refund an amount of Rs.3,60,000/- with interest at 18% p.a. from the respective date of payments, till the date of realization and pay litigation cost of Rs.2,000/- to the complainant.

 OPs to comply the order within four weeks from the date of this order.

This original order shall be kept in the file of the complaint No.2172/2011 and a copy of it shall be placed in other complaint.

Send the copy of this order to both the parties free of cost.

(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  21^st day of APRIL– 2012.)

MEMBER                                                   PRESIDENT

CS.,