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

DATED 25^th DAY OF NOVEMBER 2020

ORDER

SRI. S.L.PATIL, PRESIDENT

The complaint has been filed by complainant U/s.12 of the Consumer Protection Act, 1986 against the Opposite Party (herein after referred as OP) with a prayer to direct the OP to register the allotted site forthwith without any delay in favour of complainant and to pay a sum of Rs.10,00,000/- towards mental agony, harassment, cost of proceedings and litigation expenses and to grant such other reliefs.

          2. The brief averments made in the complaint are as follows:

The complainant submit that they are seeing the advertisements published by OP in various medium, visited the OP seeking more information about the layout formation and present status of the layout which was so called “Vajra Giri” at various survey numbers at Sheshagirihalli, Manchanayakanahalli, Bidadi Hobli, Ramanagaram Taluk and Krishnarajapura and Hampapura, Kengeri Hobli, Bengaluru South Taluk and OP informed that the layout is replete with the class apart facilities and amenities and assured them that the layout would be formed within a year and the sites would be registered favouring the purchasers immediately thereafter, provided considerable amount is paid by them towards the consideration fixed for the said plot of land.   

Further complainant submit that he expressed his willingness and eagerness to purchase by payment of money as required by the OP and membership number was given by OP was 2113.  As per agreement dated 27.07.1995, the OP had agreed to sell 1200 Sq.ft. with dimension of 30 x 40 ft. and complainant has paid Rs.45,000/- in sixty equal instalments at Rs.800 per instalment and then paid first instalment to the OP and the same was acknowledged by the OP.  The complainant made 24 instalments of Rs.19,200/- and out rightly paid Rs.15,000/- on 12.05.1997. It is further submits that OP issued a letter dated 08.08.2001 stating that OP is highly pleased to allot the site measuring 1200 Sq, ft. bearing No.414 in Block ‘C’ and complainant was to make the payment of Rs.54,920/- in order to avoid further delays in registration of site.  Further it is submits that in the said letter OP acknowledged that the payments under certain heads have been already i.e. site cost of Rs.47,840/-, development cost of Rs.12,000/- and discount @ 10% amounting to Rs.160/- totally Rs.60,000/-.  It is further submitted that on 08.08.2001 OP has issued the Possession certificate signed by Director, Town Planning and Managing Director of OP.  The copy of possession certificate is produced.

The complainant submits that after believing in OP’s words and incongruent promises so made, to be true and correct, made the payment of the money towards the purchase of the site at the layout.  It is further submitted by the complainant that he has put in all his hard earned money for purchase of the site and he has also borrowed money from various sources.  The complainant had approached the OP for registration of the site but OP did not care enough to heed to his voice and did not act accordingly.  The complainant submits that after all the imperceptibly bad situations he has been put to, the complainant started to delve into the affairs of the company.  It was shocking to know that the land was to be developed into layout and later sold to the prospective buyers were in reality, not in the name of OP.  The Directors and all the concerned people of the company were just in their seats to deceive common people and mint money by making fake promises.  The OP did not own the land and had not converted the lands to non-agricultural lands for formation of the layout.  It is was also later found out that the signature of the Director, Town Planning which was affixed on the Possession certificate issued to complainant was also a fake one and held no credibility. 

It is submitted that on 09.06.2018 complainant got issued a legal notice to OP through RPAD.  To the said legal notice, the OP issued a reply dated 03.07.2018 through its advocate stating that he has not acquired clear title from the original owner so he is not in the position to execute the registered sale deed in favour of complainant and also stated that he is going to repay the instalment amount along with bank interest rate.  It is further submits that in the reply given by OP, it is admitted by the OP that at the time of collection of instalment or money, the OP was not in a position to execute the sale deed in favour of the complainant and the lands in Sy.No.14, 19, 21 of Hampapura Village Kengeri Hobli, Bengaluru are subject to various litigations before the Hon’ble Court of Ramanagara and Bengaluru Rural Courts.  It is further clear that the OP also played with the emotions and dreams of the complainant and other prospective buyers.  The said act of the OP has caused lots of mental agony and harassment amounts to deficiency of service on their part.  Hence, these complaints.

3. On receipt of the notice OP did appear and filed version.  In the version the OP has submit that the complaint is bereft on merits lacks bonafide and the same is not maintainable under law.  It is further submit that OP company is a registered body under the Indian Companies Act, 1956 and the same was established for the purpose of developing lands for the formation of residential layouts with civic amenities and to allot the same to its members.  It is further submits that in order to form the residential layout was required to obtain the permission from various authorities namely, Deputy Commissioner, Bengaluru, Metropolitan Region Development Authority (BMRDA) and Bengaluru-Mysuru Infrastructure Corridor Area Planning Authority (BMICAPA).  BIACAPA has issued a letter dated 13^th August, 2001 to the Revenue Department to the effect that the land in question cannot be converted for non-agricultural purpose, under these circumstances, OP is not in a position to form the residential layout, as proposed earlier.

The OP further submit that on failure of complainant to pay the instalment amount and the dues within the due date has resulted the complaint filed by the complainant is not sustainable under the law.  It is further submits that the complainant had paid the last instalment in the year 2001, the cause of action for filing the complaint commence from the last day of payment.  The complainant has not taken any steps to take the above complaint towards the alleged deficiency of service within two years from the last payment made by him.  Therefore, OP stated that complaint is liable to be dismissed on the ground of limitation.

The OP submits that Karnataka Industrial Areas Development Board issued preliminary notifications to acquire its land situated at Bannikuppe, Kurubarakarenahalli and Talaguppe.  Since OP company’s land in above said three villages is entangled in the acquisition proceedings initiated by KIADB, OP is not in a position to allot the site.  It is further submits that complainant had paid only Rs.60,000/- and the OP purchased the land from the land owners after that the same land lords sold the properties to the third parties in this regard, civil suits are pending before the Hon’ble Civil courts in and around Bangalore and Ramanagar, under these circumstances, the OP cannot execute the registered sale deed in favour of complainant.  Hence, the OP is ready and willing to refund the advance amount to the complainant.  The OP further submit that the non-registration of the allotted site is not intentional, but because of the reasons which are beyond the control of the company, OP has not committed any breach of conditions of the agreement therefore, it is not liable to pay the interest/any damages.  Hence, OP prays for dismiss the complaint with exemplary cost.  

4. Complainant has filed affidavit evidence and also produced documents marked as Ex.A.1 to A.6.  The OP has also filed affidavit evidence and also filed memo for adopting the documents filed in CC No.109/2019. The complainant has also filed written argument.   Heard the learned counsel for both sides.

        5. The points that arises for our consideration are:

  6. Our answer to the above points:

REASONS

7. Point No.1: We have briefly stated the contents as well as version filed by the OP.  On receipt of the notice, OP did appeared and filed its version.  OP did not denied in respect of the allotment of the site bearing No.414 in favour of the complainant. The only say of the OP is that in order to form the residential layout required to obtain the permission from the various authorities namely Deputy Commissioner, Bengaluru, Metropolitan Region Development Authority (BMRDA) and Bengaluru-Mysuru Infrastructure Corridor Area Planning Authority (BMICAPA) which has issued a letter to the effect that land in question cannot be converted for non-agricultural purpose.  Hence, OP is not in a position to form the residential layout, as proposed earlier.  Further OP taken the specific contention stating that the complainant has paid the last instalment in the year 2001 hence, cause of action arose from 2001.  Hence, further the complainant has not taken any steps to take the contention that there is deficiency of service on the part of OP.  Hence, OP prayed for dismissal of the complaint.      

8. The OP further submits that Karnataka Industrial Area Development Board (KIADB) issued preliminary notifications to acquire its land situated at Bannikuppe, Kurubarakarenahalli and Talaguppe.  Since OP company’s land in above said three villages is entangled in the acquisition proceedings initiated by KIADB.  Hence, OP is not in a position to allot the site.  OP admitted that complainant is paid only Rs.60,000/- and it is the OP which has purchased land from the land owners and sold the properties to the third parties.  In this context, Civil suits are pending before the Bengaluru and Ramanagara Courts.  Hence, OP cannot execute the sale deed in favour of the complainant.  The OP filed version admitting that the complainant paid only Rs.60,000/-.  Hence, admitted fact did not proved under Section 58 of the Evidence Act. The learned counsel for the complainant in this case and in CC No.109 to 112/2019 and 132/2019 filed a memo furnishing the copy of the order passed by this Commission in similar cases in complaint Nos.2695 to 2702/2009 and 1270 to 1288/2009.  We have gone through the contents of the order passed in the said cases reliefs sought for there and reliefs in this case are identical in nature.  In the said cases, this Commission order for the OP to execute the registered sale deed at its own cost in respect of the respective site allotted in favour of the complainants and put them in possession of the same within three months from the date of the order or to allot any alternative site of the same measurement in the same project or in the alternative to refund the amount with interest at 12% p.a. from the date of payment till the date of realization.  Further it appears that the said order passed in the above batch cases, did not challenged before the Hon’ble State Commission by the OP.  Hence, we come to conclusion that this Commission has no other go except to place reliance on the order passed by this Forum in CC Nos. 2695 to 2702/2009 and 1270 to 1288/2009.  Hence, by applying same principles, we are constrained to direct the OP to allot the site No.414 or other site available in the same project with same dimension and to execute the sale deed in favour of the complainant on receiving the balance instalments amount if any by him.  The legal expenses to be borne by the complainant, if not to refund an amount of Rs.60,000/- with interest at 12% p.a. The option is left open to the complainant either to seek for the registration of the site as stated above or else to seek for refund of the amount of Rs.60,000/- in the light of the decision reported in EMAAR MGF Land Ltd., & Anr. V/s Amit Puri, II (2015) CPJ 568 (NC) wherein it was held that, after the promised date of delivery of possession, if the project is not completed, the discretion lies with the Complainant whether he wants to take delivery of possession or seeks refund of earnest money.  Accordingly, we come to conclusion that complainant proves the deficiency of service on the part of OP.  Accordingly, Point No.1 is answered partly in the Affirmative.

        9. Point No.2:  In the result, we pass the following:

ORDER

1. The complaint filed by the complainant u/s.12 of the Consumer Protection Act, 1986 is partly allowed. 
2. OP is directed to execute the registered sale deed in respect of site No.414 which has been allotted to complainant and put him in possession of the same, if not allot any alternative site in the same dimension in the same layout and to execute the sale deed in favour of complainant and put him in possession of the same within six weeks from the date of this order if not to refund the amount of Rs.60,000/- along with interest at 12% p.a. from the date of payment till the date of realization with litigation cost of Rs.5,000/- to the complainant.
3. The option is left open to the complainant either to seek for the registration of the site as stated above or else to seek for refund of Rs.60,000/-.
4. OP shall comply this order within six weeks from the date of receipt of the order, failing which the complainant is at liberty to have the redress as per law.
5. Furnish free copy of this order to both the parties.

 (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 25^th day of November, 2020).

Documents produced by the complainant marked as Ex.A.1 to A.7  :-

Advocate for OP filed memo for adopting the documents produced in CC No.109/2019.