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

DATED 4^th DAY OF FEBRUARY 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. The complainant by invoking Section 12 of C.P.Act, 1986 seeks reliefs against the OPs to direct the OPs to refund Rs.14,40,000/- with interest at 18% p.a. from the date of receipt of the amount till realization, award compensation of Rs.2,00,000/- with cost of litigation.

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

The complainant and OPs have entered into an agreement of sale dated 23.03.2007 for sale consideration of Rs.10,80,000/-.  The complainant has paid Rs.2,70,000/-, Rs.2,70,000/-, Rs.5,40,000/- and Rs.4,40,000/- to the OPs.  There is an agreement of sale dated 07.08.2014 between them.  The OPs failed to allot the site and also failed to refund amount.  This act of the OPs amounts to deficiency of service.  The cause of action to file this complaint arose on 23.03.2007 and on 07.08.2014.

3. After receipt of notice, OP Nos.1 and 2 only appear and file version.  The OP Nos.1 and 2 deny the allegations made in para 1 and 2 of the complaint. There was a joint agreement between them and OP No.3 for development of 30 acres of land on Devanahalli.  The OPs have invested more than Rs.15 to 20 crores.  They have filed the case before the Land Acquisition Court at Devanahalli which is pending for consideration. The OP Nos.1 and 2 have not received any amount from the complainant and OP No.3 alone received the amount.  The complainant is not entitled to any interest.  They have not played fraud on the complainant.  The complaint is barred by limitation.  They request to dismiss the complaint.

4. On 18.01.2020, the advocate for the complainant by filing a memo got dismissed, the complaint against the OP No.3 stating that there is no claim against the OP No.3.

5. The complainant filed his affidavit evidence and relies on documents.  The affidavit evidence of OP No.2 has been filed.  Even though, both parties have filed written arguments.  But, they failed to canvass oral arguments.     

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

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

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

       Point No.1:  In the affirmative

      Point No.2: Affirmative in part

      Point No.3: As per final orders

REASONS

8. Point Nos.1 and 2:  These two points do warrant the common course to discussion.  According to the complainant, he made payment of Rs.14,00,000/- by means of demand drafts. Even though, the complainant reference under para 6 of his complaint and para 7 of his affidavit evidence that he has paid additional sum of Rs.4,40,000/- but by filing a memo on 25.11.2011 through his advocate, complainant said that instead of Rs.3,60,000/- it is wrongly mentioned as Rs.4,40,000/- in para 6 of the complaint.  Apart from these discrepancies, we carefully perused the allegations made in the complaint, affidavit evidence with documents of the complainant. The OP Nos.1 and 2 have specifically stated that no payment is made to them.  The document No.1 is the intimation dated 03.01.2007 issued by the OP No.3 President, Karnataka Legislative Counsel Secretariat Employees Welfare Forum fixing Rs.10,80,000/- costs of the site measuring 40 x 60 ft.  It further indicates that Rs.5,40,000/- shall be initial payment and next payment in two equal installments of Rs.2,70,000/- each.  OP NO.3 issued letter dated 15.02.2007 to the complainant enhancing the price of site measuring 40 x 60 ft. Rs.14,40,000/- and payment to be made 50% initial deposit and remaining amount in two installments of 25%.  Similarly, OP No.3 issued letter dated 23.03.2007 and 28.02.2009 confirming allotment of site on the properly to OP No.3.  The receipts at Sl.No.5 to 11 indicate that the complainant made the payment of Rs.2,00,000/- to the OP No.3 on 03.01.2007, Rs.2,70,000/- under four demands drafts vide dated 11.01.2007, paid Rs.2,70,000/- under receipt dated 10.05.2007, payment of Rs.5,40,000/- under receipt dated 07.08.2007 and Rs.3,60,000/- under receipt dated 04.09.2020.  All these receipts have been issued by OP No.3 in favour of the complainant. But, agreement dated 23.03.2007 came to be executed between complainant and OP Nos.1 to 3, wherein the payment of Rs.2,70,000/- to the vender has been admitted.  But, first payment under receipt No.6 is dated 11.01.2007 it means the OP Nos.1 and 2 have confirmed receipt of Rs.2,70,000/-.  There is another agreement between complainant and OP Nos.1 to 3 on 07.08.2014 wherein complainant has specifically admitted that he has paid Rs.14,40,000/- to Karnataka Legislative Council Secretariat Employees Welfare Forum represented by K.Maharajan i.e. OP No.3. 
9. Even though, OP Nos.1 and 2 have specifically stated that no money was paid to them.  In order to appreciate this contention, once again we carefully perused the agreement dated 07.08.2014 executed by the OPs.  As per this document also, the complainant has paid entire amount of Rs.14,40,000/- to OP No.3 i.e. Karnataka Legislative Council Secretariat Employees Welfare Forum.  But, further recital of this document throw much light on the controversy.  It is relevant to refer other recital of agreement dated 07.08.2014 which reads thus:-

On 7^th of August we had a personal discussion with the association in presence of developers about the delay in allotting the sites as per the agreements done earlier, finally they have agreed and committed to provide an alternative sites at Bandikodigenahalli village, Jala Hobli, Yelahanka Taluk under Survey number 74 within 6 month from the date of this agreement with full developments of the land and clearance of all legal hurdles of land in this regard.

If the developer fails to allot the sites in the stipulated time frame as per the agreement, the developer has agreed to repay the amount along with interest at 18% p.a. till the date of settlement within 30 days of expire of this commitment.  Also agreed to update to progress on the development / progress in the layout formation on monthly basis to the individuals.

If the developer dose not provide/allot the site at Bandikodigehalli or repayment of the said amount, the developer agreed to undertake and to provide 2 alternative sites as per the dimensions (i.e. 2 x 40 x 60ft.) at Doddaballapura Taluk which is already developed by him and DC converted and approved by the local gram panchayats at the vide Sy No.61p1m 61p2, 61p4, 61p5 of site No.247 and 248 for security purpose.

10. The complainant and OPs had contended that it was duty of the developer i.e. OP Nos.1 and 2 to allot site to the complainant in Survey No.74 within 6 months from the date of agreement.  The recital further indicates that in case of failure of the developer i.e. OP Nos.1 and 2 to allot site in stipulated time, the developer i.e. OP Nos.1 and 2 agreed to repay the amount with interest at 18% p.a. till the date of settlement.  When such recital are made, the OP Nos.1 and 2 taken the responsibility of allotment of site or repay of amount with interest at 18% p.a.  This recitals and understanding clearly demonstrate that OP Nos.1 and 2 being the developers must have received the amount from OP No.3.  Therefore, OP Nos.1 and 2 are liable to refund Rs.14,40,000/- with 18% p.a. after expiry of 6 months from 07.08.2014 i.e. the OP Nos.1 and 2 are liable to pay interest at 18% p.a. on Rs.14,40,000/- from 07.02.2015 till realization.
11. Point No.3:- In view of the discussion referred above, the OP Nos.1 and 2 are liable to refund Rs.14,40,000/- with interest at 18% p.a. from 07.02.2015 till realization to the complainant and cost of litigation is quantified at Rs.10,000/-.  The complainant having made dismissed complaint against OP No.3 on 18.01.2020 is not liable to pay any amount to the complainant.  We proceed to pass the following 

  O R D E R

1. The complaint is allowed in part.
2. The OP Nos.1 and 2 shall refund Rs.14,40,000/- with interest at 18% p.a. from 07.02.2015 till realization to the complainant.
3. The OP Nos.1 and 2 shall pay Rs.10,000/- towards cost of litigation to the complainant.
4. The OP Nos.1 and 2 shall comply this order within 60 days from this date.
5. The complaint against OP No.3 is already dismissed on 18.01.2020.
6. Furnish the copy of this order and return the documents to the complainant with extra pleadings.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 4^th day of February, 2022)

Documents produced by the Complainant which are marked as Ex.A.1 to Ex.A.11:

Documents produced by the OP Nos.1 and 2 which are marked as Ex.B.1 and Ex.B.2: