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

DATED 26^TH DAY OF DECEMBER 2022

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

Direct the OP to pay the sale consideration advance amount of Rs.3,75,000/- with interest at 24% p.m., to the complainant and for cost and other reliefs.

2. The case set up by the complainant in brief is as under:-

It is the case of the complainant that the OP is a society represented by the then secretary Shanmukha K.C., engaged a developer M/s Maheshwari Venture to form the residential layout at Sy.No.87/2 measuring 3 acres 2 guntas situated at Ittagalapura Village, Hesaraghatta Hobli, Bagalore North Taluk, publication has been issued by the society as they are going to provide site measuring to an extent of 30 X 40 feet for a sum of Rs.3,59,400/-.  Based on the publication the complainant approached the OP and discussed about the purchase of the site which is alleged to have been BIAPPA approval layout.  On discussion with the OP the complainant agreed to purchase the property and she has made an initial payment of R.3,25,000/- and they have collected share fee and total of Rs.2,500/- towards enrolling as a member of the society. They have collected Rs.3,75,000/- initial amount towards site deposit amount. They have also issued two receipts for having received the deposit amount and share and membership fee on 01.06.2017.  The complainant has paid the amount through cheque and the same has been honored in the account of the OP.

3. It is further case of the complainant that based on the payment receipt the OP and the developer entered into an agreement of sale on 11.07.2017 and a total consideration amount of Rs.15,00,000/- has been fixed and Rs.3,75,000/- was received through cash dated 01.06.2017 and the balance amount f Rs.11,25,000/- payable in three installments at the rate of Rs.3,75,000/- each.  On acceptance of the terms and conditions the complainant and the developer signed the agreement in front of the witnesses on 11.07.2017.

4. It is further case of the complainant that she sought for allotment of site and ready and willing to pay the remaining amount.  The complainant came to know that one Smt.Rashmi Betageri filed a complaint before the R.T.Nagar police for having cheated by the OP on collecting an amount of Rs.7,50,000/- but no site has been allotted and not shown the site which is allotted in her favour. The case was registered against Mr.Balachandra the President of the society in CR No.196/2021 along with other accused persons for the offence punishable u/s 506, 34, 504, 420, 463, 464 of IPC. Hence the husband of the complainant approached the OP seeking for refund of the amount, but it is to their surprise that after receipt of Xerox copies of documents cause the notice denying the transaction and also further deny the receipts, agreements.  The complainant came to know that the initial amount which was for purchase of the property deposited in the name of the OP society because the said amount which was received through cheque of the complainant.  

5. It is further case of the complainant that in continuation of demand made by the husband of the complainant it is to the surprise a legal notice has been caused denying the identity and payment made through cheque to the OP society.  A detailed reply has been given to the legal notice sent by the complainant. This clearly shows the deficiency of service in providing site on forming of the layout but trying to deny for allotment of the site in any other layout formed by this OP society. Hence the complainant has filed this complaint.

6. After service of notice OP appeared before this Commission and filed their version. Denied all the allegations made in the complaint. It is the specific case of the OP that no agreement has been entered into between the complainant and this OP and there is no contract between them.  The complainant is not a member for deposit holder with this OP, she never approached this OP society for purchase of the site.  The complainant approached this commission with cooked up story without clean hands. The complainant is an utter stranger to the society.  The complaint is not maintainable on the ground that it is barred by limitation. The OP has denied all the allegations except admitted the issuance of the legal notice by the complainant and reply notice issued by them on 09.11.2021.  Hence OP prays for dismissal of the complaint.

7. The complainant has filed her affidavit evidence and relies on Ex.P1 to P9 documents.  On the other hand the President of the society has filed his Affidavit evidence and relied on one document.

8. Heard the arguments of the complainant, OP has neither submitted written argument nor oral arguments. Hence arguments of OP is taken as nil.  

9. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

10.   Our answers to the above points are as under:

       Point No.1:  Affirmative

      Point No.2: Affirmative in part

      Point No.3: As per final orders

REASONS

11.    Point No.1 AND 2: The complainant in support of her contention has filed her affidavit evidence, reiterated all the allegations made in the complaint. In support of her contention she has relied on Ex.P1 to P9. Ex.P1 is the letter of advertisement, issued by the OP society by giving an advertisement that site for only at Rs.3,59,400/-.  The complainant has also produced two payment receipts as Ex.P2 and P3. As per the said receipts the OP have received Rs.3,75,000/- and Rs.2,500/- for miscellaneous expenses and also for application. Ex.P4 is the agreement of sale dated 11.07.2017 entered between the OP society and the complainant. As per Ex.P4 the complainant agreed to purchase the site measuring 30 X 40 feet totally measuring 1200 sq. feet formed in A schedule property for an amount of Rs.15,00,000/-.  As per clause 4 of the agreement the vendor i.e., the society shall execute the deed of sale in favour of purchaser within 7 days from the date of last installment i.e., the IV installment and the sale deed will be executed with the priority wise by referring the booking seniority of the site in the said layout. As per clause 2 of the agreement the OP have recognized the advance sale consideration of Rs.3,75,000/- paid by the complainant and they have further agreed to receive the balance sale price of Rs.11,25,000/- in three installments of each Rs.3,75,000/-.  As per clause.2. if the purchaser wants to refund of the advance amount paid by them at any stage of the project the purchaser should send a request letter to the vendor and the vendor will take the decision in the next board meeting and they will decide regarding the same and intimate the same to the purchaser regarding refund of the advance amount after taking decision in the board meeting.

12.    It is also clear from clause 6 of the agreement the OP will hand over the possession with all the original documents of the site to the purchaser at the time of registration of absolute sale deed. In the event of breach of the agreement the aggrieved party shall entitle to enforce specific performance of this contract and recover all the cost and expenses and losses as a consequence of such breach from the party committing breach.  It is also clear from clause 8.2 in the event the vendor and the confirming party failed to perform their part of contract as per the terms and conditions of this agreement of sale they should repay the advance sale consideration amount received by the vendor under this agreement of sale to the purchaser.  

13.    Ex.P5 is the legal notice sent by the OP to the complainant and Ex.P6 is the reply sent to the OP by the complainant. Ex.P7 is the cover issued by the OP and Ex.P8 is the another cover issued by the OP and Ex.P9 is the details of payment made by the complainant to the OP with CD. 

14.    On the other hand, in support of their contention the President of the OP society namely Mr.Balachandra has filed his affidavit evidence, he has reiterated all the allegations made in the version and denied all the transactions with the complainant. He has relied on the government order dated 15.07.2022 marked as Ex.R.1. Ex.R.1 is the order passed by the Additional Registrar of Societies, Bangalore dated 15.07.2022, stating that the term of the society was completed and the decision was taken for appointment of administrator in view of the society failed to form the Management.  

15.    The OP has specifically denied that the complainant is a member and she deposited the amount with their society and further they have executed the sale agreement and they have received the amount of Rs.3,75,000/- on 01.06.2017 and they further agreed to receive the balance sale consideration amount of Rs.11,25,000/- in three installments at the rate of Rs.3,75,000/- each.  He has further admitted that he representing the society in CR No.196/2021 along with other accused persons and the complaint is registered for the offences u/s 506, 34, 504, 420, 463 and 464 of IPC. He has further stated that they have not cheated one Smt.Rashmi Betageri and they have not collected an amount of Rs.7,50,000/- and they have not agreed to allot any site and it is a created story.

16.    The evidence of the complainant and the documents produced by her clearly proves that she has approached the OP society for allotment of site and she has paid an advance amount and entered into agreement of sale with the OP society.  The complainant after coming to know about the fraud played by the office bearer of the OP society demanded the OP for refund of the advance amount.  After that the OP has come up with a new case that the complainant is not a member of their society and they have not agreed to sell the site in favour of the complainant and they have specifically denied the amount received by them from the complainant.  

17.    The OP has not produced any documents except Ex.R.1 in order to prove their contention. The OP have specifically denied the complainant. If really the OP have not received any amount and they have not issued any publication calling the public that they will provide site for only Rs.3,59,400/-  and they have not executed any agreement of sale, the OP would have taken criminal action against the complainant for filing of this false complaint.  The specific denial made by the OP will not relieve them from the liability. If the complainant is a stranger and she has not at all the member of the society and she has not at all paid the advance sale consideration amount she would not have got the documents relied on by her as Ex.P1 to P9. The OP has clearly admitted about the criminal case registered against this RW1 and other OP society office bearers.  It is clear from the FIR produced by the complainant in CR No.196/2021 that one Rashmi Betageri has filed a complaint against this OP society alleging that they have agreed to sell the site formed in Sy.No.87/2 measuring 30 X 40 feet for a consideration amount of Rs.15,00,000/- and also received Rs.7,50,000/-.  After that the complainant came to know about the fraud played by the society and the false documents created by the society and also the OP society have threatened the complainant in CR No.196/2021 through rowdies by making galata near her house.  The investigation is going on.

18.    Under these circumstances, it is clear that this complainant has also entered into the sale agreement on the false assurance given by the Op society and paid the amount with a fond hope that she may get the site in the layout formed by the OP society in sy.No.87/2 measuring 2 acres 2 guntas situated at Ittagalapura village, Bangalore North Taluk.  There is no reason to disbelieve the evidence of the complainant and the documents produce by her since the OP have not at all taken any action against the complainant alleging that the complainant has played fraud on them and she made false allegations and filed false complaint against them even though they have not at all executed any sale agreement and not received any amount.

19.    The complainant is one of the victim for fraud played by the OP society and she has lost her money invested for purchase of the site. The OP with an intention to grab the amount from the innocent public have given a false advertisement calling the general public to purchase the site even though they have not at all formed any layout and sites. The complainant has clearly established the deficiency of service, negligence, unfair trade practice on the part of the OP. hence the complainant is entitled for the relief claimed in this complaint.  Therefore we answer point No.1 in affirmative and point No.2 partly in affirmative.

20.    Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. Op is directed to pay the advance amount of Rs.3,75,000/- to the complainant with interest at 15% p.a., from the date of complaint till realization.
3. The OP is further directed to pay an amount of Rs.1,00,000/- as compensation with litigation expenses of Rs.10,000/- to the complainant.
4. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 20% p.a. after expiry of 60 days on Rs.3,75,000/- till final payment.
5. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 26^TH day of DECEMBER, 2022)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;