CC No: 2190/2014

 Filed on: 26.12.2014

Disposed on: 22.02.2016

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BANGALORE – 560 052

DATED THIS THE 22^ND DAY OF FEBRUARY 2016

CONSUMER COMPLAINT NO.2190/2014

PRESENT:

Sri. H.S.Ramakrishna,  B.Sc., LL.B.

                                    PRESIDENT

                        Smt. L. Mamatha, B.A., (Law), LL.B.

                        MEMBER

                                                        V/S

ORDER 

BY SRI H.S. RAMAKRISHNA, PRESIDENT

1.         This is a complaint filed by the Complainant against the Opposite Parties under Section-12 of the Consumer Protection Act, 1986, praying to pass an order directing the Opposite Parties to refund the advance amount of Rs.4,79,550/- and grant such other reliefs as it deems just in the interest of justice and equity.

2.         The brief facts of the Complaint can be stated as under:

The Complainants alleged that they entered into an agreement of sale dt.06.11.2007 with the Opposite Parties for purchase of Plot No.232 in Aiprocity, Abbanakuppe Village, Ittamdu Village, Bidadi Hobli, Ramanagaram Taluk, Bangalore Rural District or a consideration of Rs.7,20,000/-.  The Complainants have paid a sum of Rs.2,52,000/- at the time of agreement of sale as advance.  The balance of Rs.4,68,000/- payable within one month.  The Opposite Parties obtaining layout approval from the Bangalore Metropolitan Regional Development Authority.  In the event of Opposite Parties failing to obtain layout approval from BMRDA, the advance amount paid would be refunded along with interest at the bank rate.  Instead of obtaining necessary sanction and approval for the project and thereafter executing the sale deed in favour of the Complainants as undertaken, the Opposite Parties at one pretext or the other kept on postponing the matter.  Even by the end of November 2012, they were again only verbal assurance and nothing concrete was forthcoming, the complainants wrote letter dt.15.12.2012 to the 2^nd Opposite Party seeking refund of the advance money, but the same was returned unserved.  Another letter dt.30.06.2013 addressed to the Opposite Party No.3 also did not shown result in any response.  The Complainants issued legal notice on 05.08.2014 to the Opposite Parties, but fails to comply with the notice or reply to the notice.  Hence, this complaint.

            3.         In response to the notice, the Opposite Parties 1 to 3 put their appearance through their counsel.  The 1^st Opposite Party fails to file version.  The Opposite Parties 2 & 3 filed their separate version.  The 2^nd Opposite Party in the version pleaded that on account of certain delayed payments by other customers, the Opposite Parties could not obtain the layout approval and necessary permissions required for completion of the layout formation.  The Complainant is not entitled for the reliefs as claimed in the complaint.  The complaint is not maintainable either in law or on facts.  The 2^nd Opposite Party and other partners have entered into the memorandum of understanding dt.05.08.2010 in terms of which the other partners have agreed and taken the responsibility of refunding the monies received for the Aipro Citi Propject.  The 2^nd Opposite Party has received a sum of Rs.59,16,000/- from various customers namely Venkata Shashank, Venkata Rohith, Koneru Adithya, Aswini, Koll Padmaja, Dulipalla Anuradha, Mikkilineni Rambabu, Srinivas Rao Koduri and G. Pallavi.  Accordingly, the liability of the Opposite Party restricted to the aforementioned customers.  The monies paid by the Complainant in the instant case has not been received by the 2^nd Opposite Party and therefore, the 2^nd Opposite Party cannot be fastened with the liability to refund the monies to the Complainant herein and denied other averments made in the complaint and prays to dismiss the complaint.

            4.         The 3^rd Opposite Party in Version pleaded that the Opposite Party is a partnership firm consisting of partners Sri Jythoula Venkateswara Rao – profit sharing ratio of 10%, Sri B. Adisekara Reddy – profit sharing ratio of 30%, Sri Jyothula Saivara Prasada Rao – profit sharing ratio of 10%, Sri Devavarapu Srinivasa Rao – profit sharing ratio of 10%, Sri Ravi Ankineedu Prasada Rao – profit sharing ratio of 40%.  Sri Jyothula Venkateswara Rao, Sri Ravi Ankineedu Prasada Rao, Sri B. Adisekhara Reddy are managing partners besides Sri Jyothula Saivara Prasada Rao and Sri Deevavarapu Srinivas Rao are partners.  The Opposite Party executed agreement in favour of the Complainant on 06.11.2007 to sell the site of measuring 1200 sq.ft. in Aipro Citi which going to be formed in various survey numbers of Abbanakuppe and Ittamadu Village, Bidadi Hobli, Ramanagara District for total sale consideration of Rs.7,20,000/-.  The Complainant has paid advance of Rs.2,52,000/-.  The remaining amount of total sale consideration is agreed to be paid by the Complainant to the Opposite Party within one month from the date of approval from BMRDA approval of the layout, Clause-4 of the agreement as follows: “ The purchaser shall pay the balance amount of Rs.4,68,000/- within one month from the date of approval”.  Therefore, the Complainant is entitled to ask for registration of sale deed in his favour only when BMRDA, the planning authority has given approval to the formed layout.  The Opposite Party has purchased agricultural lands in the name of its partners viz., Sri Jyothula Venkateswara Rao, Sri B.Adisekhara Reddy and Sri Jyothula Sai Varaprasada Rao from various land owners of Ittamadu village for formation of Aipro Citi Layout.  The Opposite Party neither negligent nor delayed the formation of Aipro Citi Layout.  But because the BMRDA has published notification in the official gazette dt.19.07.2006 and 20.03.2007 stating that its going to prepare master plan for Ramanagara District until finalizing of the master plan the concern authority are restricted to give any conversion order, formation of layout.  The BMRDA has prepared draft master plan vide notification on 20.01.2011 and called for objections.  The agricultural lands purchased by the Opposite Party in the name of its partners are classified as agricultural zone.  The Opposite Party filed an objection on 17.03.2011.  The Opposite Party is not deliberately postponing the registration of site in favour of Complainant and there is no deficiency of service as stated by the Complainant.  The Opposite Party is ready to execute the sale deed after obtaining the conversion order from the Deputy Commissioner and layout plan approval from BMRDA.  The delay in getting approval is due to act of state.  Hence, the Complainant is not entitled to receive any relief made in the complaint.  Due to delay in approval of layout plan, internal disputes have arisen among the partners.   Since 2010 other partners are not attending day to day affairs of the office, only one partner i.e. Sri B. Adishekhara Reddy is attending to customers and maintaining office and attending day to day affairs.  All the lands purchased in the name of partners namely are Sri Jyothula Venkateswara Rao, Sri J. Sai Varaprasada Rao and Sri B. Adisekhara Reddy are through firm account.  For the sake of convenience it is registered in the name of partners as they are agricultural lands to be converted in to non-agricultural residential purpose later.  The money was paid out of firm funds.  The clause-6 of partnership deed states that “ The land shall be registered in the name of the firm or in the name of its partner’s individual name depending upon the requirement from time to time”.  Therefore properties belong to the firm.  Hence, all the partners are necessary in the above proceedings without them, the matter will not be adjudicated substantial.  The Complainant has colluded with other partners and filed complaint on Sri B. Adisekhara Reddy and Sri Ravi Ankineedu Prasad Rao.  Hence, prays to dismiss the complaint.

5.         In support of the complaint, the complainant has filed his affidavit by way of evidence.  For the 2^nd Opposite Party one Mr. Ankineedu Ravi Prasada Rao has filed his affidavit by way of evidence.  Heard the arguments of both the parties.

6.         Now the points that arise for consideration are:-

1. Whether the Complainants have proved the alleged deficiency in service by the Opposite Parties?
2. If so, to what relief the Complainants are entitled?

7.         Our findings on the above points are:-

                        POINT (1):-  Affirmative

                        POINT (2):-As per the final Order

REASONS

8.         POINT NO. 1:-         On perusal of records, it is not in disputed that the Complainants have entered into an agreement of sale dt.06.11.2007 with Aipro City for purchase of Plot bearing No.232 for a sum of Rs.7,20,000/- and also it is not in dispute that the Complainant had paid a sum of Rs.2,52,000/- as advance and in terms of the agreement, the balance sum of Rs.4,68,000/- was payable within one month of the Opposite Parties obtaining layout approval from BMRDA.  Further, in order to establish this fact, the Complainant has filed his affidavit by way of evidence and in the affidavit also he reiterated the same and filed Agreement of Sale entered between M/s Aipro City and the Complainants.  As looking into this document it is dt.06.11.2007.  As per the agreement of sale, the Complainants have agreed to purchase Plot No.232 in the layout called Aipro City at Abbanakuppe Village, Ittamadu Village, Bidadi Hobli, Ramanagara District for a sum of Rs.7,20,000/-.  On the date of agreement of sale, the Complainants have paid advance of Rs.2,52,000/- through cehque bearing No.211860 dt.03.10.2007 for a sum of Rs.10,000/- and another cheque bearing No.694501 dt.22.10.2007 for a sum of Rs.2,42,000/- of State Bank of India.  This evidence of the Complainant remains unchallenged and to disbelieve this version, there is no contra evidence, thereby it is proper to accept the contention of the Complainant that on 06.11.2007 the Complainants have entered into an agreement of sale with the Opposite Party to purchase the plot bearing No.232 for a sum of Rs.7,20,000/- and on the date of agreement paid advance of Rs.2,52,000/-.  Further by looking into this document, it is very clear that the Complainants have entered into an Agreement with Aipro City represented by managing partners Sri Ravi Ankineedu Prasada Rao.  This agreement of sale is signed by Sri Ravi Ankineedu Prasada Rao on behalf of the Opposite Party i.e. Opposite Party No.2.  Nodoubt in the version filed by the 3^rd Opposite Party Sri Ravi Ankineedu Prasada Rao take a defence that all the partners are necessary in the proceedings and without them the matter will not be adjudicated substantially on the ground that the Opposite Party is a partnership firm consisting of partners Sri Jythoula Venkateswara Rao, Sri B. Adisekara Reddy, Sri Jyothula Saivara Prasada Rao, Sri Devavarapu Srinivasa Rao, Sri Ravi Ankineedu Prasada Rao.  So even according to the version of the 3^rd Opposite Party, the 1^st Opposite Party is the partnership firm consisting of five partners namely Sri Jythoula Venkateswara Rao, Sri B. Adisekara Reddy, Sri Jyothula Saivara Prasada Rao, Sri Devavarapu Srinivasa Rao, Sri Ravi Ankineedu Prasada Rao.    Further pleaded that Sri Jythoula Venkateswara Rao, Sri Ravi Ankineedu Prasada Rao and Sri B. Adisekara Reddy are managing partners.  So for that reason, the complaint is filed against 1^st Opposite Party Aipro City.  The 2^nd and 3^rd Opposite Parties Sri Ravi Ankineedu Prasada Rao and Sri Adishekara Reddy who are the managing partners of the 1^st Opposite Party.  Even this fact is clear as looking into the agreement of sale dt.06.11.2007.  Therefore, it is not proper to accept the defence taken by the 3^rd Opposite Party that all partners are necessary in the above proceedings.

            9.         It is the further case of the Complainant that the agreement provides Complainant has to pay the balance sum of Rs.4,68,000/- within one month of the Opposite Parties obtaining the layout approval from BMRDA and further provides in the event of Opposite Party failing to obtain the layout approval from BMRDA, the advance money paid would be refunded along with interest at bank rate.  To substantiate this, the Complainant in the sworn testimony reiterated the same and this version of the Complainants remain unchallenged.  Further his version is supported by agreement of sale.  As looking into the agreement of sale entered between the parties, as per Clause-12 it is clear incase of land has not been approved by BMRDA, the initial deposit amount will be refunded with interest as per existing bank rate and as per Clause-4 of this agreement, the purchaser shall pay the balance amount of Rs.4,68,000/- within one month from the date of approval.  Even this fact has not been denied and there is no rebuttal evidence to disbelieve the version of the Complainant.  Further, the 2^nd Opposite Party in their version take a defence that on account of certain delayed payments by other customers, the Opposite Parties could not obtain the layout approval and necessary permission required for a completion of the layout formation.  So from this version of the 2^nd Opposite Party, it is clear that the Opposite Parties have not obtained layout approval as on today and they admitted that the delay is due to delay in payment by other customers.  To that effect there is no evidence except the interested version of the Opposite Party.  Therefore, it is not proper to accept their defence.  On the other hand, even from the defence, it is very clear that as on today the Opposite Parties have not obtained approval for the layout.  So due to this reason, the Complainants have not paid the balance consideration amount of Rs.4,68,000/-.

            10.      Further as per Clause-12 of the agreement, the Opposite Parties fail to get approval for the layout, then Opposite Parties are liable to refund the advance amount to the Complainants with interest prevailing in the bank.  So the Complainants demanded for refund of the advance amount inspite of their demands, the Opposite Parties fail to refund the advance amount.  This is further supported by the notice issued by the Complainants to the Opposite Party No.3 Sri Adishekara Reddy dt.30.06.2013 and notice issued to the 2^nd Opposite Party Sri Ravi Ankineedu Prasada Rao dt.15.12.2012.  Inspite of requests of the Complainants, the Opposite Parties fail to refund the advance amount, for that reason, the Complainants got issued legal notice to the Opposite Parties.  Even though the said notice was served, the Opposite Parties fail to refund the amount.  Thereby, this fact clearly goes to show that there is deficiency of service on the part of the Opposite Parties 1 to 3 since as per the terms of the agreement, they fails to refund the advance amount as agreed by them inspite of failure of the Opposite Parties to get approval of the plan.  Hence, this point is held in the affirmative.

11.      POINT NO.2:-          In view of the finding on Point No.1, we proceed to pass the following;

ORDER

The Complaint is allowed holding that there is deficiency of service by the Opposite Parties 1 to 3.  The Opposite Parties 1 to 3 are directed to refund advance of Rs.2,52,000/- to the Complainants along with interest at 9.5% p.a. from 22.10.2007 to 03.12.2014.  The Opposite Parties 1 to 3 are also directed to pay a sum of Rs.50,000/- as compensation.  The Opposite Parties 1 to 3 are directed to pay Rs.5,000/- as costs.  The Opposite Parties 1 to 3 are jointly and severally liable to pay the aforesaid amount within 30 days from the date of this Order.  Failing which, the aforesaid amount shall carry interest at 9.5% p.a. from 03.12.2014, till the date of realization.

Supply free copy of this order to both the parties. 

(Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 22^nd day of February 2016).

       MEMBER                                                                               PRESIDENT

CC. NO.2190/2014

LIST OF WITNESSES AND DOCUMENTS

Witnesses not examined, but affidavit of the witnesses is filed, as follows;

1. Sri N. Murali has filed his affidavit for Complainant.
2. Sri Ankineedu Ravi Prasada Rao has filed his affidavit for Opposite Party No.2.

List of documents filed by the Complainant :

1. Copy of the Agreement of Sale.
2. Copy of the letter dt.15.12.2012 and 30.06.2013.
3. Copy of the notice dt.05.08.2014.
4. Copy of the postal acknowledgements.

List of documents filed by the Opposite Parties

1. Copy of the acknowledgement of registration of firm.
2. Copy of the partnership deed.
3. Copy of the reconstituted partnership deed.
4. Copy of the Gazette.
5. Copy of the letter dt.17.03.2011.

MEMBER                                                                               PRESIDENT