COMPLAINT FILED: 29.07.2009<br /> DISPIOSED ON: 02.03.2010 <br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 2ND MARCH 2010<br /> <br /> PRESENT :- SRI. B.S. REDDY PRESIDENT<br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI. A. MUNIYAPPA MEMBER <br /> COMPLAINT NO.1792/2009<br /> <br /> COMPLAINANT<br /> <br /> <br /> <br /> <br /> <br /> <br /> Dr. L.G. Krishna,<br /> S/o L.G. Ragavendra Rao,<br /> House No.72/A,<br /> 18/A Ward, Sangankal Road,<br /> Gandhinagar,<br /> Bellary.<br /> <br /> Rep: by S.P.A. Holder,<br /> Mr. K. Bhima Rao,<br /> S/o Late K. Setharama Rao,<br /> H.No. 161, 5th Cross,<br /> H.M.T. Layout,<br /> Mathikere,<br /> Bangalore – 560 052.<br /> <br /> Advocate: Sri. H. Santhosh Kumar <br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTY The Managing Director,<br /> M/s Megacity Developers and Builders Pvt. Ltd.,<br /> Mega Tower 120, K.H.Road,<br /> Bangalore – 560 009.<br /> <br /> Also at:<br /> M/s Megacity Developers and Builders Pvt. Ltd.,<br /> No.1, Chandraloka,<br /> 5th Cross, <br /> Gandhinagar,<br /> Bangalore – 560 009.<br /> <br /> Advocate: Sri R. Tharesh<br /> <br /> O R D E R<br /> <br /> SMT. M. YASHODHAMMA, MEMBER<br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986, by the complainant seeking direction against the Opposite Party (herein after called as O.P) to execute sale deed and pay interest at 24% p.a. on the date of payment or in alternative to pay Rs.1,95,567/- compensation of Rs.15,00,000/- and costs of on the allegations of deficiency in service on the part of the OP. <br /> <br /> 2. The brief averments made in this complaint are as fallows: <br /> <br /> Complainant being lured away by the publicity given by the OP who claims to be the developer and builders of residential layout consisting of sites of various dimension in and around Bangalore thought of becoming member of the project floated by the OP in the name and style ‘Vajragiri Township’ and opted to purchase a site measuring 60’ X 80’. OP executed an agreement of sale dated 22.07.1995. Complainant paid Rs.1,92,000/- in 60 EMI of Rs.3,200/- from 17.07.1996 to 17.05.2000 towards cost of the site and Rs.200/- towards membership fees, Rs.167/- towards development fees and Rs.3,200/- paid in excess by over sight. Totally complainant paid Rs.1,95,567/- to OP. Even after paying the entire cost of the site OP failed to execute the sale deed and deliver the possession. After reading the paper publication regarding that OP is accused of scam of crores of rupees and reply of OP on 07.01.2007, complainant wrote letter to OP on 08.01.2007 seeking for execution and registration of sale deed. There is no reply. On 21.08.2007 complainant got issued legal notice inspite of service of notice there was no response. Hence complainant felt deficiency in service on the part of the OP. Under the circumstances he is advised to file this complaint and sought for the necessary reliefs accordingly. <br /> <br /> 3. On appearance, OP filed the version mainly contending that in order to form the residential layout OP is required to obtain permission from various authorities namely Deputy Commissioner, Bangalore BMRDA, BMICAPA. When OP took up the project there were no legal hurdles for the formation of the layout but after applying for the conversion of the land. OP came to know that land is notified by the KIADB for the purpose of industrial development. Due to change in circumstances OP is not in a position to complete the project and not in a position to form the layout and execute the sale deed. Complaint is barred by limitation. There is no deficiency in service on the part of the OP. Hence OP is ready to refund the amount with bank rate of interest. On these grounds OP prayed for dismissal of the complaint. <br /> <br /> 4. In order to substantiate the complaint averments complainant through his power of attorney holder filed affidavit evidence and produced some documents. OP also filed affidavit evidence. OP stated in the affidavit evidence that some documents are produced as annexures but in fact failed to produce any documents. Then the arguments were heard. <br /> <br /> 5. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <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:- If so whether the complainant is <br /> entitled for the reliefs claimed?<br /> <br /> Point No.3:- To what Order?<br /> <br /> 6. We have gone through the pleadings of the parties both oral and documentary evidence and arguments advanced. In view of the reasons given by us in the following paragraphs our findings on: <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 /> 7. At the outset it is not at dispute that the complainant became the member of the project floated by the OP in the name and style “Vajragiri Township” and booked a site measuring 60’ X 80’. OP accepted his membership and allotted one plot and executed an agreement of sale on 22.07.1995. Complainant paid Rs.1,95,000/- in 60 installments of Rs.3,200/- each from 17.07.1996 to 17.05.2000 towards the cost of the site. The special power of attorney executed by the complainant. The cash receipts issued by OP, copy of the sale agreement, membership card, news paper publications, correspondences, copy of legal notice and related acknowledgments are produced. <br /> <br /> 8. As against this the defence of the OP that they did acquire required quantity of land for the formation of the said layout. Because of the intervention of the BMRDA and BMICAPA and so also as the Deputy Commissioner of Bangalore Rural District did not issue No Objection Certificate for the conversion of the agricultural land into non-agricultural purpose, they are unable to complete the project. Further land is notified by the KIADB for the purpose of industrial development. Due to legal hurdles OP has not completed the said project even though they received entire sital value in the year 2000 itself. The defence of the OP appears to be defence for defence sake. Further it is contended by the OP that OP is not liable to pay interest and damages as huge amount is held up in the civil litigation and acquisition proceedings. <br /> <br /> 9. The contention of the OP that complaint is barred by time cannot be accepted because when OP accepted the membership fees of the complainant and received sital value until the OP register the site in favour of complainant; complainant will get recurring cause of action. <br /> <br /> 10. The act of the OP in accepting the advance amount from the complainant and utilizing the same for the purpose of investment in purchasing the lands without land being converted and layout being formed amounts to deficiency in service. Since OP failed to form the layout OP cannot be directed to execute and register the sale deed in favour of the complainant. Hence complainant is entitled for refund of amount with interest at 12% p.a. <br /> <br /> 11. We are satisfied that the complainant is able to prove the deficiency in service on the part of the OP. OP retained the amount to gain wrongfully so as to cause wrongful loss to the complainant. OP is ready to refund the amount with bank rate of interest. Under these circumstances the complaint is allowed in part. Accordingly we proceed to pass the following:<br /> O R D E R<br /> <br /> Complaint is allowed in part. OP is directed to refund Rs.1,95,000/- with interest at 12% p.a. from June – 2000 to till realization and pay a litigation cost of Rs.1,000/- to the complainant. This order is to be complied within four weeks from the date of its communication.<br /> <br /> Send the copy of this order to both the parties free of cost.<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 02nd day of March 2010) <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> Snm:<br />