COMPLAINT FILED:01.01.2011

                                            DISPOSED On:24.02.2012

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL

FORUM AT BANGALORE (URBAN)

24^th DAY OF FEBRUARY 2012

       PRESENT:- SRI. B.S.REDDY                 PRESIDENT                        

                         SRI.A.MUNIYAPPA                 MEMBER              

O R D E R

SRI. B.S.REDDY, PRESIDENT

The complainant filed this complaint U/s.12 of the Consumer Protection Act of 1986 seeking direction against Opposite Party (herein after called as OP) to pay an amount of Rs.15,00,000/- on the allegation of deficiency in service.

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

The OP introduced a Scheme towards the construction of residential apartments at Akkupet Village, Kasaba Hobli, Devanahalli Taluk, Bangalore Rural District and the Scheme was called as “Orange Premium”. Vide publication was made with regard to the said project and the complainant paid an amount of Rs.8,00,000/- to the OP towards advance initial sale consideration and booked 8 flats in the said project. OP agreed to pay rental premium of Rs.7,500/- per month for each flat booked from the date of execution of the sale agreement, till completion of the project. In spite of repeated requests, OP failed to execute the agreement of sale, it was agreed by OP that the project would be completed within 18 months from the date of the approval of the plan from the competent authorities and also to deliver the possession of the flat within 24 months from the date of approval of the plan. OP has paid sum of Rs.45,000/- at the rate of Rs.7,500/- per month towards monthly rental premiums for 6 flats and failed to pay rental monthly premiums for another two flats. The Statement of Account of Syndicate Bank is produced to show that the said amount of Rs.45,000/- was credited to the account of the complainant. OP failed to pay the remaining monthly rents from December-2008. OP is due and liable to pay sum of Rs.1,80,000/- towards rental premium at the rate of Rs.7,500/- per month from the date of booking of 8 flats i.e., from 11.11.2008 till the end of December-2010 for a period of 24 months. OP declared that he is unable to pay the monthly rental premium and complete the project as agreed. The complainant demanded for refund of the amount of Rs.8,00,000/- along with rental premiums and interest at 18% p.a. OP filed Criminal Petition No.3866/2009 before the Hon’ble High Court to quash the FIR’s registered against him and he undertook before the High Court to make the payment and refund the amount to the investors including the complainant. The Op has not paid any instalments towards refund of the amount of Rs.8,00,000/- and interest at 18% p.a. from 01.12.2008 amounting to Rs.2,88,000/-, monthly rental premium of Rs.1,80,000/-, towards expenses Rs.15,000/- and compensation of Rs.2,17,000/- in all Rs.15,00,000/. Hence the complaint.

3. On appearance Op filed version contending that the OP introduced the Scheme called “Orange Premium” for construction of residential apartments. It is denied that the complainant booked 8 flats and paid initial sale consideration of Rs.8,00,000/-. It is admitted that OP agreed to complete the construction activities and deliver possession within 24 months to its customers. It is also admitted that OP agreed to pay monthly rentals as claimed till the completion of the project. It is denied that OP failed to pay the rentals. The complainant along with other investors on the basis of the reports in the media that there was a failure in the project marketed by OP without even intimating the OP filed Criminal complaints against him. OP informed the complainant that the Project/scheme floated by him has got nothing to do with the project which has failed in K.R.Puram and that he was only marketing agent and that it is one M/s Graniti Developers who had failed to deliver the sites. However, OP also informed that he would complete the project and handover the possession of the flats within the agreed period. The complainant did not believe the OP and insisted to refund all the money. OP was forced to cancel the agreement with the landlords and could not complete the project. OP approached the High Court in quashing the Criminal complaints filed against him. During the pendency of the proceedings before the High Court OP has made payments to the tune of Rs.1.84 crores as per the directions of the Hon’ble High Court. The Criminal Petition was dismissed, OP had partly refunded the advance amount to the complainant during the pendency of the proceedings before the Hon’ble High Court. The said fact has been suppressed by the complainant. OP has invested huge money for promoting the sales of the sites/plots by way of advertising in several news papers of the said M/s Granity Properties Pvt. Ltd. The amount which was required to be refunded by M/s Granity Properties Limited was not refunded to its customers and as per their request the OP issued cheques towards the refund of the amount. The said M/s Granity Properties cheated and played fraud upon the OP. Being aggrieved by the order of dismissal of the Criminal Petition by the Hon’ble High Court, the OP preferred SLP No.2611/2010 before the Hon’ble Supreme Court and the Hon’ble Supreme Court after considering the case on merits was pleased to stay the operation of he order by directing he OP to pay the entire liability. OP has cleared the entire liability by depositing the amount in the Supreme Court. The Supreme Court has directed the Hon’ble High Court to disburse the entire money so deposited and the matter is pending before the High Court. OP has honestly deposited the entire liability before the Hon’ble Supreme Court, the complaint is liable to be dismissed. Thus it is prayed to dismiss the complaint.

4. In order to substantiate the complaint averments, the complainant filed affidavit evidence. OP filed affidavit evidence in support of defence version.

5. Arguments on both sides heard.

6. Points for our consideration are:

      Point No.1:- Whether the complainant proved     

                         The deficiency in service on the    

                           part of the OP?

Point No.2:- Whether the complainant is entitled

                  for the reliefs now claimed?

    Point No.3:- To what Order?

7. We record our findings on the above points are:

    Point No.1:- Affirmative.

           Point No.2:- Affirmative in part.

           Point No.3:- As per final Order.

R E A S O N S

8.   The fact that the complainant booked 8 flats in the project proposed to be taken up by OP called as “Orange Premium” at Akkupet Village, Devanahalli Taluk, Bangalore Rural District and paid initial sale consideration of Rs.8,00,000/- through cheques as shown in Para-4 of the complaint is supported by the receipts issued by OP acknowledging the receipt of the said amount on 11.11.2008. The complainant has produced the booking applications form along with the receipts. The Bank Account Statement produced also supports the fact that the cheques issued towards payment of initial advance sale consideration of Rs.1,00,000/- to each of 8 flats are encashed. It is not in dispute that OP could not complete the project, as he was unable to acquire any land for the proposed project. Though the OP has agreed to pay rental premium of Rs.7,500/- per month for each of the flats booked from the date of executing of the agreement till completion of the project, but there is no agreement deed executed by the OP incorporating the terms and conditions. The complainant claims that OP has paid only an amount of Rs.45,000/- at the rate of 7,500/- towards monthly rental premium for 6 flats and failed to pay the monthly rental for another 2 flats. When the project itself has not taken up and there is no agreement deed executed by OP with regard to the stipulation to pay rental premiums, the complainant cannot claim the arrears of rental premiums for a period of 24 months as claimed in the complaint. When OP was not able to acquire any land commence the project work it would have been fair enough on his part to refund the amount received towards initial advance sale consideration. The Criminal complaints were filed against the OP, case was registered on the basis of the said complaints. The Criminal Petition No.3866/2009 filed before the Hon’ble High Court was dismissed. OP approached the Hon’ble Supreme Court and as per the direction of the Supreme Court it is stated that an amount of Rs.5 Crores 16 Lakhs has been deposited towards entire liability, the Hon’ble High Court has been directed to disburse the said amount to the investors. OP has not produced any material to show that the claim of this complainant is covered in the said amount deposited. The very fact of OP having not commenced the project nor refunded the advance sale consideration received amounts to deficiency in service on his part. OP has pleaded that during the pendency of the Criminal Petition before the Hon’ble High Court he has made part payment towards refund of the amount to the complainant but there is no materials supporting the said fact. The complainant is claiming refund of the advance sale consideration of Rs.8,00,000/- along with interest at 18% p.a. Further he has claimed arrears of monthly rental premiums and other expenses and compensation of Rs.2,17,000/-. In other similar complaints against the same, OP in complaint No.1382/2010 and connected matters, this Forum has allowed interest at 18% p.a. on the advance sale consideration paid and the same is to be treated as compensation and expenses. No separate compensation has been allowed. Under these circumstances, we are of the view that the complainant is entitled for refund an amount of Rs.8,00,000/- with interest at 18% p.a. from 01.12.2008 till the date of realization and litigation cost of Rs.3,000/-. Accordingly we proceed to pass the following:

O R D E R

The complaint filed by the complainant is allowed in part.

OP is directed to refund an amount of Rs.8,00,000/- with interest at 18% p.a. from 01.12.2008 till the date of realization and pay litigation cost of Rs.3,000/- to the complainant.

This order is to be complied within four weeks from the date of its communication.

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

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 24^th day of February-2012.)

MEMBER                                                    PRESIDENT

Cs.