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

DATED 31^ST DAY OF AUGUST 2023

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:-

(a) Direct the OP to pay a sum of Rs.3,60,000/- + a sum of Rs.93,000/- paid as registration expenses along with interest at 16% p.m., as per MOU dated 07.01.2017.

 (b) Direct the OP to pay compensation of Rs.50,000/- towards injury to the complainant.

(c) To direct the OP to pay cost of the complaint and other expenses including advocate fee of Rs.25,000/- and such other remedy deems fit.

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

The OP is the promoters and developers of residential layouts consisting of sites of various dimensions in and around Chikkakurugodu Village & Kalludi Village, Kasaba Hobli, Gowribidanur Taluk, Chikkaballapura District under the name and style of M/s Vsan Infrastructure Pvt. Ltd., the complainant become the member of the said project floated as san city Gold.  The complainant opted to purchase a site No.43, measuring 30X40 feet, formed in schedule A property and Site No.44 measuring 30X40 feet in schedule B property, situated at Chikkakurugodu Village & Kalludi Village, Kasaba Hobli, Gowribidanur Taluk, Chikkaballapura District.

3. As per the assurance given by the OP the complainant has accepted the membership under customer ID 16124, as per renewal of MOU dated 07.01.2017 has agreed to purchase the schedule A property for a total consideration of Rs.1,80,000/- and the schedule  B property for a total consideration of Rs.1,80,000/- and paid the entire amount through cheque.  The OP has agreed to complete the sale transaction within 24 months from the date of renewal of MOU dated07.01.2017.
4. After receipt of the full sale consideration, has unnecessarily started delaying to complete the sale transaction by giving untenable reasons without giving a proper feed back to the complainant. The OP has ignored the complainant when the complainant tried to contact the OP on several times.  The OP has neither started the project and complete the project and not informed about the progress of the work and put the complainant in an awkward situation. The complainant has lost faith on the OP because of their fault.  After that the complainant has exhausted all options to settle the matter but the request made by the complainant was not at all accepted by the OP.  The OP on one or the other pretext went on postponing to complete the project and sale transaction. At last the complainant has got issued legal notice on 26.12.2022. Inspite of service of notice the OP has neither issued any reply nor complied the request of the complainant.  This complainant is always ready and willing to get the schedule property registered her name and she is ready to bare the registration expenses. But the OP failed to complete the sale transaction as per their promise. Hence the complainant has filed this complaint.
5. In response to the notice, OP appears and files version. The OP has admitted all the allegations made in the complaint relating to the membership of the complainant and the sale consideration amount paid by her and also the MOU entered between them.
6. It is the specific contention taken by the OP that he was supposed to register the sale deed in favour of the complainant within two years from the date of execution of the said MOU.  Even though he has applied for conversion of land before concerned government authorities in November 2016 the conversion order was passed by the authorities in 2018. In view of the demonetization in the month of November 2016 the whole nation suffered heavily in terms of finance and the OP has also suffered finance problem due to sudden changes in monitory policies.  It even halted his various project developments.
7. After obtaining the approvals from the concerned government authorities as per the new law of the government OP was compelled to register this project under RERA and was then permitted to register the plot to his customers. In compliance of the same this OP was not able to get register the schedule A and B sites to the complainant as per the MOU.  This OP has also offered the complainant an exchange site in another project which was ready for registration the complainant not only disagreed to the same but even filed this petition before this commission to exploit the helplessness situation of the OP at that time.
8. It is further case of the OP that he is ready to provide alternative site to the complainant for registration towards the executed MOU with the consent of the complainant provided she pays the deficit amount towards the existing price of the alternative site.  This OP is ready to get the plot register within six months from the date of consent from the complainant. Due to outbreak of the covid-19 this OP is not in a situation to refund the amount paid by the complainant since the economic condition of the OP is as bad as the economic condition of the nation.  Hence OP prayed for dismissal of the complaint.
9. The complainant has filed his affidavit evidence and relies on 12 documents.  Though sufficient time was given to OP to adduce their evidence, they have not appeared before this commission and not filed any affidavit evidence or documents.
10. Heard the arguments of advocate for the complainant only. 
11. 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?

12. 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

13. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version, affidavit evidence of complainant and documents 1 to 12.
14. It is undisputed fact that the complainant become the member of the project floated as San City Gold and she opted to purchase the schedule A and B property bearing No. 43 and 44, measuring 1200 sq. feet each for Rs.1,80,000/- each and paid the entire sale consideration amount through cheques and entered into MOU as per Ex.P2 to P5.
15. Complainant has paid Rs.2,73,000/- each in respect of schedule properties as Ex.P6 and P7.  The complainant has paid the entire consideration amount.  After receipt of the full sale consideration, the OP has started ignoring the complainant and he has neither started to complete the project nor informed the progress of work to the complainant.
16. When the OP failed to respond to the complainant she was decided to cancel the MOU and requested the OP to refund of the amount. He has also got issued legal notice as Ex.P8 and the same was served on the OP. The complainant has also produced the intimation letter issued by the OP.
17. On the other hand, the contention taken by the OP is that he was unable to complete the project and to register the sale deed in favour of the complainant as agreed by him within two years from the date of execution of MOU since there was a delay in obtaining the conversion order and also he has suffered heavily in terms of finance due to demonetization and as per the new law he was compel to register the project under the RERA.  In compliance of the same he was not able to get the plot registered in the name of the complainant as per the MOU. Even now he is ready to provide alternative site to the complainant within six months after obtaining the consent of the complainant.  If the complainant is ready to pay the deficit amount towards the existing price of the alternative site, but the complainant was not agreed to get the alternative site proposed by the OP.
18. When the complainant has paid the entire amount during 2016 and has waited till 2018 as per the MOU the OP has neither started the project nor got registered the schedule plots in the name of the complainant.  He was not available for the complainant when the complainant has made several attempts to contact the OP. The OP would have informed the complainant about his problems and requested the complainant for granting time to complete the project. Instead of informing the complainant the OP made himself not available to the complainant. In view of this the complainant has to approach this Commission for refund of the amount from the OP.
19. The complainant cannot accept the proposal for alternative site made by the OP as she was not satisfied.  The OP cannot force the complainant to accept his proposal without refunding the amount.  The complainant also cannot wait for an uncertain period for getting the schedule plots/sites registered in his name when the project itself is not at all started by the OP as assured by them. It is the duty of the OP to get all the approvals before calling for the public to purchase the sites. Instead of that the OP has collected the money from the proposed purchasers and he has not started the project by taking untenable reasons.  When the OP has not completed the project and get the schedule plots registered in the name of the complainant after obtaining entire sale consideration amount, amounts to deficiency of service and negligence and unfair trade practice. Hence the complainant is entitled for the relief.  Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.
20. Point No.3:- In view the discussion referred above the complaint is liable to be allowed in part.  OP is liable to refund Rs.3,60,000/- + Rs.93,000/- paid as registration expenses along with interest at 10% p.a., from 13.10.2016 to till the date of realization.  OP is further liable to pay Rs.50,000/- towards compensation with litigation expenses of Rs.10,000/- to the complainant. We proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OP is directed to pay Rs.3,60,000/- + Rs.93,000/- with interest at 10% p.a., from 13.10.2016 to till the date of realization.
3. OP is further directed to pay Rs.50,000/- towards compensation along with litigation cost 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 12% p.a. after expiry of 60 days on Rs.3,60,000/- + 93,000/- 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 31^ST day of AUGUST, 2023)

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

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

NIL