COMPLAINT FILED: 28.08.2009 <br /> DISPOSED ON: 11.05.2010<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 11TH MAY 2010<br /> <br /> PRESENT :-SRI. B.S.REDDY PRESIDENT <br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI.A.MUNIYAPPA MEMBER <br /> <br /> COMPLAINT NO.2088/2009<br /> <br /> <br /> COMPLAINANT <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> Sri. Vinayak M. Hegde,<br /> S/o Sri. Mahabaleshwar Hegde,<br /> Aged about 30 years,<br /> R/at No.6/1, 2nd Main,<br /> 4th Cross, Dinnur, <br /> R.T. Nagar,<br /> Bangalore – 560 010.<br /> <br /> Advocate: Sri. Girish <br /> <br /> V/s.<br /> <br /> OPPOSITE PARTY M/s Presidency Royal,<br /> No.895/1, “Skanda”,<br /> 14th Cross,<br /> Mahalakshmi Layout,<br /> Bangalore – 560 086.<br /> <br /> Rep: by its Partner <br /> Sri. T.Ripun Reddy.<br /> <br /> Advocate: Sri C.P.Dhananjaya<br /> <br /> O R D E R<br /> <br /> SRI. B.S.REDDY, PRESIDENT<br /> <br /> The complainant filed this complaint u/s. 12 of the C.P. Act of 1986, seeking direction against Opposite Party (herein after called as OP) to refund an amount of Rs.2,55,000/- with compensation of Rs.1,00,000/- towards damages further sum of Rs.1,00,000/- towards mental agony in all Rs.4,55,000/- with litigation cost on the allegations of deficiency in service on the part of OP.<br /> <br /> 2. The case of the complainant to be stated in brief is that OP as a partnership firm carrying the business of developing the lands and township called for applications for allotment of sites; in the proposed layout called Presidency Royal. The complainant paid an amount of Rs.2,55,000/- on 22.10.2007 through cheque drawn on ICICI bank, Bangalore. He entered into an agreement on 02.11.2007 and OP allotted the plot No.225. OP assured that the layout will be developed within a short period, but still layout is not formed and OP is incapable to register the sale deed. OP went on assuring the complainant about formation of layout and registration of sale deed but on one pretext or the other failed to execute the sale deed. Legal notice was issued to OP; the same was served and OP issued reply stating some more time is required to execute the sale deed; as the approval from the Government has not been given for them. OP has not come forward for the execution of the sale deed or to repay the amount with interest. Complainant is not in a position to wait for indefinite period. Hence the complaint seeking necessary reliefs as stated above. <br /> <br /> 3. On appearance, OP filed version admitting that the complainant had entered into an agreement on 02.11.2007 to purchase a site in the proposed layout and site No.225 was agreed to be sold. It is also admitted that the complainant had paid total amount of Rs.2,55,000/- through cheque on 22.10.2007 and OP assured that within short period the layout will be formed. It is denied that for the legal notice issued by complainant reply has been sent stating some more time to execute the sale deed as the approval from the Government has not been given. It is denied that OP is liable to refund the amount and pay the compensation with interest at 18% p.a. <br /> <br /> It is stated that OP had informed the complainant that the project was incomplete because of not getting the conversion order from the concerned authority and financial crises and global depreciation. BMRDA in order to approve the master plan had banned land conversion and layout development from July-2006, because of which OP was not able to get any conversion or sanction of layout plan. Now the said land lock was unlocked by approving the master plan on 08.09.2009. OP is making applications for getting conversions and approvals of the said layout which will take some time. OP has not committed any kind of deficiency in service. As soon as the conversion and the layout plan has been sanctioned OP will execute the sale deed in favour of the complainant. Hence it is prayed to dismiss the complaint. <br /> <br /> 4. In order to substantiate the complaint averments, the complainant filed affidavit evidence and produced documents. The partner of OP filed affidavit evidence and produced documents in support of the defence version. Both the parties filed written arguments. Arguments heard; points for consideration are: <br /> <br /> Point No.1:- Whether the complainant has proved <br /> the deficiency in service on the part of <br /> the OP?<br /> <br /> Point No.2:- Whether the complainant is entitled<br /> for the reliefs now claimed?<br /> <br /> Point No.3:- To what Order?<br /> <br /> <br /> 5. We record our findings on the above points are:<br /> <br /> Point No.1:- Affirmative. <br /> Point No.2:- Affirmative in part. <br /> Point No.3:- As per final Order.<br /> <br /> R E A S O N S<br /> <br /> 6. At the out set it is not in dispute that the OP being a partnership firm carrying on the business of developing the lands and townships invited applications for allotment of sites in the proposed layout called ‘Presidency Royal’. The complainant applied for allotment of a site in the said layout and paid an amount of Rs.2,55,000/- through cheque on 22.10.2007. OP executed an agreement for sale by allotting the site No.225 in favour of the complainant. The brochure and receipt for having paid the amount of Rs.2,55,000/- are produced. The copy of the agreement of sale executed by OP provides that the complainant has agreed to purchase the site No.225 for a total consideration of Rs.7,65,000/- and has paid sum of Rs.2,55,000/- towards advance sale consideration. The complainant has agreed to pay the balance amount of Rs.5,10,000/- within a month from the date of approval. There is no time limit fixed for getting the layout plan approved. The complainant is claiming for refund advance paid on the ground that OP has not executed the sale deed. <br /> <br /> 7. For the legal notice dated 08.07.2009 got issued by complainant demanding to furnish the documents and sanction layout plan or to pay sum of Rs.2,55,000/- with interest at 15% p.a. OP has replied seeking some more time for getting conversion order and for layout approval on the ground that the previous Government had stopped all land conversion and sanctioning process which caused delay. In the version it is stated that BMRDA in order to approve the master plan had banned land conversion and layout development from July – 2006 because of which OP was not able to get any conversion or sanction of layout plan from the concerned authority. From this it becomes clear that even on the date of execution of agreement of sale there was a ban for conversion of lands and sanctions of layout, still OP has received the advance consideration by allotting a site in the proposed layout. The documents now produced by OP relates to the applications filed for conversion in respect of Sy. No.34/25, 73/2, 65/1 by the owners of the lands through their Power of Attorney A.Manjunath. Copy of the power of attorney deed also produced. On the basis of these documents we are unable to hold that OP is prepared to execute the sale deed in respect of the site allotted. The complainant cannot be made to wait indefinitely. Only because the Government has approved the master plan and now OP has applied for conversion and for sanction of layout plan; the complainant cannot be deprived of his amount which has been retained by the OP.<br /> <br /> 8. The learned counsel for the OP contended that now the Government has approved the master plan of that area on 08.09.2009, OP has applied for conversion order and for the sanction layout plan and OP will be getting the conversion order and sanction layout plan within 3 months. Thereafter OP is prepared to execute the sale deed. Hence OP is not liable to refund the amount and pay any compensation. In our view even at the time of executing agreement deed there was no any document in the name of OP for having acquired the land for formation of the layout; there was clear ban for conversion and formation of layout by BMRDA. Inspite of all these OP made the complainant to part with an amount of Rs.2,55,000/- assuring to get the land and forming a layout. There is no any justification to retain the amount received and to make the complainant to wait for further more to get a sale deed. On the basis of the materials placed there is no document in the name of OP for having acquired any land for formation of the layout. The documents produced relates to the land owners having moved applications for conversion through their GPA holder. Under these circumstances we are of the view that OP inspite of receiving the legal notice failed to refund the amount, the same amounts to deficiency in service on its part. The complainant is entitled for the reliefs for refund of the amount paid with interest at 12% p.a. There is no any material in support of the claim regarding compensation. Accordingly we proceed to pass the following:<br /> <br /> O R D E R<br /> <br /> The complaint filed by the complainant is allowed in part. <br /> <br /> OP is directed to refund an amount of Rs.2,55,000/- with interest at 12% p.a. from the date of payment till the date of realization with litigation cost of Rs.2,000/- to the complainant.<br /> <br /> This order is to be complied within four weeks from the date of its communication. <br /> <br /> Send copy of this order to both the parties free of costs. <br /> <br /> (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 11th day of May 2010.) <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> Snm:<br />