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

DATED 10^th DAY OF JUNE 2022

ORDER

SRI.SHIVARAMA.K, PRESIDENT

1. The complainant has filed this complaint under Section 35 of C.P.Act, 2019 for a direction to the OP to pay a sum of Rs.2,89,500/- with future interest till the realization of the amount and to pass such other orders as this Commission deems fit in the circumstances of the case.

2. It is not in dispute that OP is a company and does the work of construction of buildings and developing the properties and it had entered into a memo of understanding dated 01.08.2016 with the complainant agreeing to sell the site bearing No.188C measuring 30 x 40 ft. at Kalidevapura and Byrapura Villages, Kodegehalli Hobli, Madhugiri Taluk, Tumkur District formed in a layout known as “San City Purple C” in Sy.No.1/8, 141/1A2, 146, 1/11, 1/10, 1/6, 1/9, 1/5, 1/12, 138/31, 138/33, 113/1A, 1/3, 1/1 and 1/4 for a consideration amount of Rs.1,50,000/-.  Further it is not in dispute that the complainant had issued a legal notice on 06.08.2021 calling upon the OP either to register the site allotted to him or to refund the amount paid by him along with interest.  Further, so far the OP did not execute the sale deed in favour of the complainant and did not refund the amount.

3. To prove the case, the complainant (PW1) had filed affidavit in the form of his evidence in chief and got marked Ex.P.1 to Ex.P.5 documents.  The representative of OP had filed affidavit in the form of his evidence in chief. 

4. Counsels for both the parties have filed written arguments. 

5. Heard the arguments.

6. The points that would arise for our consideration are as under:-

1. Whether there is deficiency in service on the part of the OP?
2. Whether the complainant is entitled for the reliefs as sought for?
3. What order?

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

       Point No.1:-  In affirmative.

      Point No.2:- Partly in affirmative.   

      Point No.3:-As per the final order for the following

REASONS

8.  Point Nos.1 and 2: In order to avoid the repetition of facts, we have discussed both the points together.  Complainant (PW1) and OP (RW1) have reiterated the fact stated in their respective pleadings in the affidavit filed in the form of their evidence in chief.  There is no dispute in between the parties that the complainant had paid a sum of Rs.1,50,000/- as consideration for the site offered by the OP in the layout promised to be formed.  Ex.P.1 is the memorandum of understanding executed by the OP in favour of the complainant dated 01.08.2016 offering to form layout and acknowledging the receipt of the sale consideration of Rs.1,50,000/-.  It is stated in the memorandum of understanding that the time duration fixed for the transaction was for a period of 24 months and after 24 months, the contract could be renewed.  Ex.P.2 is the renewal of memorandum of understanding executed by the OP in favour of the complainant dated 27.08.2018, in which the time duration was fixed for 12 months and it is also agreed that after 12 months, the contract can be renewed.
9. It is the contention of the learned counsel for the complainant as averred in the written arguments that there is no renewal of memorandum of understanding after Ex.P.2 MOU been executed.  Further as per Ex.P.2, 12 months time was given to complete the transaction from 27.08.2018.  Even though, the complainant had visited number of times to the office of OP since 2016 and requested to execute the sale deed in favour of the complainant as agreed, the OP had postponed by saying one or the other reasons even though the OP had taken full sale consideration including registration and administration charges.  Further, the OP did not form the layout in the land as assured.  Hence, the complainant got issued legal notice dated 06.08.2021 vide Ex.P.3 and Ex.P.4 is the postal receipt and Ex.P.5 is the acknowledgement for having received the notice by the OP.  In spite of receipt of notice, the OP did not come forward to execute sale deed.  Hence, there is deficiency of service on the part of the OP.
10. Contrary to that, it is the contention of the OP as averred in the version and written arguments filed that it had applied for the conversion in the month of November, 2016 and had obtained the order of conversion in the year 2018 and due to demonetization took place in the month of November, 2016 the whole nation suffered heavily in terms of finance and the OP sustained serious financial crisis and its projects been halted.  Further, as per the new law of the Government, OP was compelled to register the project under RERA and thereafter, permitted to register the plots to its customers. 
11. We feel since the OP did not produce any documents in support of his contention that he got the land converted and obtained permission from RERA, there is no merit in the contention of the learned counsel for the OP with regard to the development of the layout.  Apart from that, the OP did not produce any documents with regard to the land being purchased by the OP in the survey number stated in Ex.P.1 memorandum of understanding.  Hence, in any angle, it cannot be believed that the OP had developed the land and formed layout as assured in Ex.P.1 and Ex.P.2 memorandum of understanding.  Further, it is not forth-coming as to why the OP did not reply to the notice and as to why the OP did not come forward to execute the sale deed even after legal notice been issued vide Ex.P.3 and received by the OP as per the Ex.P.5 postal acknowledgement.
12. It is the further contention of the OP that on 12.08.2021 it had called upon the complainant and explained regarding the hike in charges for registration of plot as per the Government guidelines and the complainant had failed to act upon the same and intimated the complainant about the registration of his flat according to the seniority allotment of registration of the plots.  Further, it is the contention that the OP had offered the complainant for exchange of site in another project of the OP which was ready for registration.  But, the complainant dis-agreed for the same.  We feel, the said averment in the written arguments itself indicates that the OP had not developed the layout as assured in Ex.P.1 and Ex.P.2 memorandum of understanding.  Further, had it been developed then as to why the OP offered for exchange of site in another project.  Hence, we feel there is no merit in the contention of the learned counsel for the OP.
13. It is further contended by the learned counsel for the OP that in view of the out-break of Covid-19 virus, the OP was unable to get register the plot at that point of time.  For the above reasons, we feel there is no merit in the said contention also.
14. We feel, since the OP did not allot the site as assured in Ex.P.1 and Ex.P.2, there is short coming on the part of the OP and the same attracts the deficiency of service as contemplated under Section 2(11) of C.P.Act, 2019.  Further, since the parties have agreed that the OP shall allot the site for a consideration in the layout to be formed and the task of the OP was a service.  Hence, the complainant will be a “consumer” as contemplated under Section 2(7) of the C.P.Act, 2019.
15. Further, it could be seen in Ex.P.1 that the parties have agreed that in case of breach of agreement, the injured party shall be entitled to seek damages from the breaching party in the case of the schedule property.  This clause also supports the complainant to approach this Commission.  Hence, we feel there is deficiency of service on the part of the OP.
16. The complainant claimed a sum of Rs.2,89,500/- with future interest.  Admittedly, according to P.W.1 he has paid sale consideration amount of Rs.1,50,000/- by way of cheque dated 25.07.2016.  Hence, the complainant is entitled for the said sale consideration of Rs.1,50,000/-.  The complainant had claimed interest at the rate of 18% p.a. for a period of 5 years 2 months i.e. till the date of filing the complaint.  We feel, the said rate of interest is an excessive one and interest at the rate of 9% p.a. would be suffice the case of the complainant.  Hence, we feel the complainant is entitled for interest at the rate of 9% p.a. on Rs.1,50,000/- for a period of 5 years 2 months i.e. till the date of complaint is filed.  Further, the complainant claimed a sum of Rs.3,000/- towards notice charges.  The complainant had retained an advocate to conduct the case and had sent a legal notice vide Ex.P.3 through the advocate to the OP.  Hence, towards litigation costs, the complainant is entitled for a sum of Rs.10,000/-.  The complainant had claimed such other reliefs.  Section 39 of C.P.Act, 2019 provides for a direction to the OP to pay such amount as may be awarded by it as compensation to the consumers for any loss or injury suffered by consumer due to the negligence of the OP and also provides almost adequate costs to the parties.  Hence, we feel the complainant is entitled for a sum of Rs.20,000/- towards mental agony undergone for having waited since from 2016 till to-day with an anticipate that the OP would allot site as assured.  Hence, the complainant is entitled for a sum of Rs.20,000/- towards mental agony undergone.   Accordingly, we answer the point No.1 in affirmative and point No.2 partly in affirmative.
17. Point No.3:- In view of the discussions made above and findings given on point Nos.1 and 2, we proceed to pass the following 

O R D E R

1. The complaint is allowed in part.
2. The OP is directed to pay a sum of Rs.1,50,000/- to the complainant with interest at 9% p.a. for a period of 5 years 2 months i.e. till the date of filing the complaint and thereafter till the realization.
3. Further, the OP is directed to pay a sum of Rs.10,000/- towards cost of litigation and to pay Rs.20,000/- towards mental agony undergone to the complainant.
4. The OP shall comply the order within 30 days from the date of this order.
5. In the event of OP fails to pay the said amount of Rs.30,000/- within 30 days from date of order, the same shall carry interest at the rate of 9% p.a. from the date of order till realization.
6. Furnish the copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 10^h day of June, 2022)

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

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