BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL <br /> FORUM AT BANGALORE (URBAN)<br /> <br /> 25th AUGUST 2010<br /> <br /> PRESENT:- SRI. B.S.REDDY PRESIDENT <br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI.A.MUNIYAPPA MEMBER <br /> <br /> COMPLAINT NOs. 2905, 2906 & 2907/2009<br /> <br /> <br /> <br /> COMPLAINT NO.2905/09<br /> COMPLAINANT<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> COMPLAINT NO.2906/09<br /> COMPLAINANTS<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> COMPLAINT NO.2907/09<br /> COMPLAINANT<br /> <br /> <br /> <br /> <br /> <br /> <br /> Sri.S.T.Hussain,<br /> S/o S.A.Hussain,<br /> Aged about 65 years,<br /> No.2-2-61/2,<br /> Tippusultan Road,<br /> Raichur-584 101,<br /> <br /> Rept. by his son & Power <br /> of Attorney Holder, <br /> Sri.S.S.Hussain,<br /> Aged about 23 years,<br /> <br /> <br /> 1.Sri.S.Chandan Kumar<br /> Aged about 38 years,<br /> <br /> 2.Dr.Sanjay,<br /> Aged 40 years,<br /> <br /> Both sons of S.R.<br /> Khandelwal, No.L/281, <br /> Nijalingappa Colony, <br /> Raichur-584 101.<br /> <br /> Sri.S.R.Khandelwal,<br /> S/o Late Ramachandra,<br /> Aged about 62 years,<br /> No.L/281, <br /> Nijalingappa Colony,<br /> Raichur-584 101,<br /> <br /> Advocate– Sri.S.Basavaraj<br /> <br /> <br /> <br /> <br /> OPPOSITE PARTY V/s<br /> <br /> <br /> The Citi Green,<br /> City Green Farms Pvt. Ltd.,<br /> (Homes & Developments),<br /> No.2, 1st Floor, 24th Main,<br /> J.P Nagar, 1st Phase,<br /> Bangalore – 560 078.<br /> <br /> Rept. by its Managing Director Sri. Radharamana.<br /> <br /> Advocate– Sri.G.Sukumaran<br /> <br /> <br /> O R D E R<br /> <br /> SMT. M. YASHODHAMMA, MEMBER<br /> These are the complaints filed U/s. 12 of the Consumer Protection Act of 1986 by the complainants, seeking direction to the Opposite Party (herein after called as O.P) to execute sale deed with a stipulated time if OP fails to execute the sale deed to give liberty to the complainant to get sale deed executed through due process of law or in alternative to direct the OP to repay the entire amount with interest at 24% p.a. till realization and to pay compensation of Rs.2,00,000/- and cost on the allegation of infair trade practice and deficiency in service. <br /> <br /> As the opposite parties in all the complaints are common, the question involved, relief claimed being the same, in the interest of justice, in order to avoid repetition of facts and multiciplity of reasoning, these cases stand disposed of by this common order.<br /> The brief averments, as could be seen from the contents of the complaints are as under:<br /> 2. Each one of these complainants being lured away with the advertisement and propaganda issued by the OP who claims to be the developers and promoters of farm house and layout in and around Bangalore thought of purchasing the plot of their choice. In that regard they contacted the OP. OP accepted their membership, allotted them the number in the year 1994-95. Then each one of these complainants opted to purchase the plot of their choice and paid the amount towards the cost in EMI of Rs.4000/- every month. Thereafter some how there were no developmental activities at all. One fine day OP closed down its business and office and where about is not known. With great difficulty complainants came to know the present address of the OP.<br /> 3. On 31.10.2009 complainants caused the legal notice through their Advocates to OP stating to be present before the Sub Registrar to get the sale deed and requested OP to send the documents and draft sale deed a week earlier to the transaction OP gave the untenable reply. <br /> 4. Complainants also filed application u/s 5 of limitation Act seeking for condenation of delay in filing these complaints along with affidavit explaining the reason for delay. Though complainants invested their hard earned money in lakhs they are unable to reap the fruits of their investment because of the carelessness, negligence and hostile attitude of the OP. Thus they felt deficiency in service on the part of the OP. For the convenience sake the date of membership and number, area of the plot, amount paid, date of payments, date of legal notice and reply notice is mentioned in the chart below;<br /> <br /> <br /> <br /> Sl No. Complaint No. Date of Agree-ment & Membership No. Farm Area & Plot No. Amount paid Payment made in the year Date of Legal Notice Date of Reply Notice<br /> 1) 2905/09 16.02.95 300,300A 10000 Sq feet 174 1,64,000/- 22.02.94 to 02.01.99 31.01.09 31.01.09<br /> 2) 2906/09 16.02.95 115,115A 10000 Sq feet 03 2,16,000/- 18.01.95 to 02.01.99 31.10.09 12.11.09<br /> 3) 2907/09 16.02.95296,296A 10000 Sq feet 163 2,36,000/- 22.12.94 to 02.01.99 31.10.09 12.11.09<br /> When the repeated requests and demands made by the complainants went in futile they are advised to file these complaints and sought for the reliefs accordingly.<br /> <br /> <br /> 5. On appearance, OP filed the version. The defence set out by the OP in all these cases is same and identical. The brief averments, as could be seen from the contents of the version is as under:<br /> <br /> That complainants are guilty of suppression of true and real facts as such complaints are not maintainable; Complainants are neglected to perform their part of contract of agreement dated 16.02.1995 within the stipulated time; Since time being the essence of the contract; Mere by issuance of legal notice dated 04.11.2009 complainants will not get jurisdiction and complainants cannot approach this forum due to their own negligence and latches after lapse of time and breach of terms of contract; complainants are not entitled for any reliefs as they themselves had failed to fulfill their obligations; complainants are not consumers, No deficiency of any alleged service by the OP as defined u/s 2(1)(d) of the Act as reported in 2000(2) CLJ 14 2000(2) CPR 135, 2000(1) CPJ 573 (ph); The transaction of the land in question is an immovable property, cannot be a consumer as reported in 1998 (1) CLT 346 (Hry); complainants does not fall under the definition of a consumers and not entitled to approach this Forum; nor this Forum has got the jurisdiction to entertain the complaints of this nature; OP is a seller, complainants are purchasers and failure on the part of the complainants under the agreements; complainants cannot claim as consumers as the entire issue is under the status of specific performance and it does not involve in the nature of consumer dispute as it involves the issue of specific performance which comes under the civil court jurisdiction as stated and reported in 1999 (1) CLT 665, 1999(1) CPR 93 (NC). This forum is barred by entertaining these complaints; after lapse of 3 years; OP is not entitled to make any payment or damages or refund as sought by these complainants; Among other grounds OP prayed for dismissal of these complaints on payment of costs.<br /> <br /> 6. In order to substantiate the complaints averments, In Complaint No.2905/09 complainant through his power of attorney holder and his son S.S.Hussain filed affidavit evidence. In Complaint No.2906/09 complainant himself filed his affidavit evidence and in Complaint No.2907/09 complainant through his power of Attorney holder and his son Sri. S.Chandan Kumar filed his affidavit evidence and complainants produced power of Attorney, agreement dated 16.02.1995, Pass Book, Statement of Payments, Receipts issued by OP, Legal notice and reply notice on behalf of OP Sri. Radha Ramanaiah filed his affidavit evidence and OP not produced any documents. Complainant filed written arguments. Heard oral arguments from both the sides. <br /> <br /> 7. In view of the above said facts the points now that arise for our consideration in these complaints are as under:<br /> <br /> <br /> Point No. 1 :- Whether the complainants have Proved <br /> the deficiency in service on the part of <br /> the OP?<br /> <br /> Point No. 2 :- If so, whether the complainants are <br /> entitled for the relief’s now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 8. 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:<br /> <br /> Point No.1:- In Affirmative<br /> Point No.2:- Affirmative in part<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 9. The fact that each one of these complainants become the member of the project floated by the OP company in the year 1995 with a fond hope to purchase a farm land (plots) of various dimensions is not at dispute. Each one of these complainants opted to purchase the farm land of their choice and they went on paying the cost to the OP Company. The details of membership number, farm area, actual amount paid along with the date of payment are mentioned in the chart noted above for convenience. Though complainants invested their money to purchase a plot in the year 1999 but there were no developmental activities at all.<br /> <br /> 10. Later on some how complainants traced the present address of OP it is further contended by the complainants that they did approach the OP for several times and requested to allot the plot and register the plot, but it went in vain. On the other hand one fine day OP changed its office and closed down the business. Complainants were in search of OP. Then complainants approached the OP to redress their grievance. Copy of the paper publication is produced including that of the passbook issued by the OP and the receipts passed by the OP Citi Green Farms for having received the cost of the plot in part. Contents of those documents are not at dispute.<br /> <br /> 11. The evidence of the complainants finds full corroboration with the contents of the above said undisputed documents. Their evidence appears to be very much natural, cogent and consistent. There is nothing to discard their sworn testimony. It is a quality of evidence that is more important than that of the quantity. Though OP received a huge amount in lakhs from each one of these complainants in the year 1994-95 or so but failed to keep up its promise in allotting the plots and registering the same in their favour. Complainants invested their hard earned money to purchase a plot of their choice but they are unable to reap the fruits of investment because of the hostile attitude of the OP. OP having retained the said huge amount for all these years accrued the wrongful gain to self thereby caused wrongful loss to the complainants that too for no fault of theirs.<br /> <br /> 12. As against this unimpeachable evidence of the complainant’s OP has come up with the defence that the complaints are barred by time. Further it is contended that complainant’s have become the defaulter in not making payment of the EMI. In our view complainants were ready and willing to pay the remaining amount because of non completion of the said project in time and as there were no actual developmental activities, they stopped making further payment. In addition to that OP has closed down its office changed its business, shifted the office to some other places without intimating its members. Under such circumstances complainants are rather restrained and prevented from making further payment.<br /> <br /> 13. In all these cases complainants filed applications u/s 5 of the limitation Act to condone delay in filing the complaints. In the supporting affidavits filed it is stated that during the year 1999 office of the OP was shifted from Kumara Krupa Road, to some where. They were unable to trace the address of the office to pay further instalments. During the month of October 2009 they came to know that this forum has passed judgement in complaint No.1252 and 1253/08 against the OP. Hence they applied for certified copy of that judgement and approached their advocate to file these complaints. As such there is delay in approaching this forum, which is neither intentional nor deliberate but for the bonafide reasons. If the delay is not condoned the complainants will be put untold hardship.<br /> <br /> 14. In our view when OP admitted the membership of the complainants and received the part payment, it is an obligation on the part of the OP to receive the remaining amount and execute the registered sale deed in respect of the plots. OP denied its liability to execute the sale deed in the reply notice as such the cause of action arose for the complainants to file the complaints after receipt of the reply notice, dated 12.11.2009. The complaints filed are not barred by limitation. Therefore contention of the OP that the complaints are barred by time cannot be accepted. Even otherwise the application for the condonation of the delay is filed by the complainants, on the ground that the office of the OP was shifted in the year 1999, they were unable to trace the address of the OP. The grounds shown for the delay is sufficient, even if there is any delay in filing the complaints; delay condoned. <br /> <br /> 15. As per the reply notice it is contended by the OP that complainants have transacted with the earlier directors of the said company and they have taken over and purchased the said company in the year 1999. When the present directors of the OP purchased the said company along with the assets, there is an obligation on the part of the present OP to redress the grievance of its earlier members. Under such circumstances the contention of the OP that complainants have to proceed against earlier directors does not hold much water.<br /> <br /> 16. It is further contended by the OP that the complainants become the defaulters in not making payment of the monthly installments thereby violated the clause.6 and 10 of the agreement, hence what ever the amount they have paid is forfeited and their membership is cancelled. This arbitrary and unilateral act of the OP speaks about their ulterior motive and intention and this circumstances is sufficient to hold that there is an unfair trade practice and deficiency in service on the part of the OP. It would have been more fair on the part of the OP to cause notice in writing and give an opportunity to explain the delay in payment of the remaining EMI as contemplated under natural justice. But no such steps are taken by the OP and its directors. Thus OP can’t invoke or take undue advantage of clause like 6 and 10 of the said agreement.<br /> <br /> 17. At the same time complainants have not produced any other documents to show that OP completed the said project, formed the layout consisting of farm land, plots of various dimensions and such vacant plots are still available at the disposal of the OP free from all encumbrances and that the said layout is approved by the statutory authorities. So in the absence of production of such documents, in our view complainants are not entitled for the relief of allotment of plot and registration of the plot that too by retaining remaining EMI.<br /> <br /> 18. The defence of the OP that complainants are not consumers; dispute involved is in respect of immovable property, complainants ought to have approached the Civil Court for the relief of specific performance cannot be accepted because in number of cases Hon’ble National Commission held that even when property share is involved when there is a deficiency in rendering service aggrieved person can approach the consumer forum.<br /> <br /> 19. In similar Case No. 2109/08 to 2114/08 and 744/09, 745/09, 746/09, 747/09 and 748/09 against the OP this forum allowed the complaints, directing OP to refund the amount with interest at 12% p.a. and awarded compensation copies of the said judgements are produced by complainants.<br /> <br /> 20. Having considered the facts and circumstances of the case in our opinion justice will be met by directing the OP to refund what ever the amount that is received along with interest and pay compensation as a guidance value of the plots with litigation cost to the complainants. With these observations we answer point Nos.1 & 2 accordingly and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaints are allowed in part.<br /> <br /> 1. In complaint No.2905/09 OP is directed to refund Rs.1,64,000/- together with interest at the rate of 12% p.a from January 1999 till realization and also pay Rs.1,00,000/- as guidance value of the plot as compensation along with litigation cost of Rs.1,000/-.<br /> <br /> 2. In complaint No.2906/09 OP is directed to refund Rs.2,16,000/- together with interest at the rate of 12% p.a from January 1999 till realization and also pay Rs.1,00,000/- as guidance value of the plot as compensation along with litigation cost of Rs.1,000/-.<br /> <br /> 3. In complaint No.2907/09 OP is directed to refund Rs.2,36,000/- together with interest at the rate of 12% p.a from January 1999 till realization and also pay Rs.1,00,000/- as guidance value of the plot as compensation along with litigation cost of Rs.1,000/-.<br /> <br /> This order is to be complied within four weeks from the date of its communication.<br /> <br /> This original order shall be kept in the file of the complaint No.2905/2009 and a copy of it shall be placed in other respective files.<br /> <br /> (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 25th day of August 2010.) <br /> <br /> PRESIDENT<br /> PRESIDENT<br /> <br /> <br /> MEMBER MEMBER <br /> <br /> gm* <br /> <br /> <br />