BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

   03^rd DAY OF JUNE 2020

COMMON ORDER

SMT.PRATHIBHA. R.K., PRESIDENT,

These two complaints have been filed by different complainants U/s.12 of the Consumer Protection Act, 1986 against one and same the Opposite Party (herein after referred as OP).  The issues involved in these complaints are one and the same and the reliefs sought in each of the complaints are almost identical.  Hence these two complaints have been taken up together for disposal under this common order.

2. The complainants have filed these complaints for refund of the advance amount paid by each one of them towards purchase of sites together with interest, compensation and litigation cost etc., alleging deficiency of service.

3. The allegations made in these two complaints are almost same.  The brief averments made in these complaints are as under:

The complainants are represented before this Forum through their brother-in-law and SPA holder Sri.Vasu V.  Complainants submitted that complainants are customers of OP esteemed Company.  OP Company forming layouts and allotting sites to the customers under the name and style M/s.MAXWORTH REALTY INDIA LIMITED.  That OP being a developer desirous of developing a residential layout project called “Max Sindhur” and same is formed in land bearing survey No.49, measuring 1 Acre 4 Guntas and land bearing survey No.50, measuring 13 Acres 27 Guntas, in all measuring 14 Acres 31 Gunts, situated at Singrahalli Village, Kundana Hobli, Devanahalli Taluk, Bangalore Rural District.

Complainants further submitted that, after seeing paper advertisement the complainant in complaint No.1393/2018 has booked two sites bearing No.147, 148 each measuring 40x30 feet and complainant in complaint No.1394/2018 has booked two sites bearing No.121 and 122, each measuring 40x30 feet at the rate of Rs.422/- per square feet for a total consideration of Rs.10,12,800/-.  Each of the complainants have paid advance sale consideration of Rs.3,03,840/- by way of cheques.  The particulars of the advance amount paid by the complainants have been given in detail in the following table.

OP has given acknowledgement receipts for the said amounts.  In the meanwhile complainants entered into a Assignment Agreement with OP on 16.09.2011 in complaint No.1394/2018 and on 21.09.2011 in complaint No.1393/2018 with respect to the above said sites by paying the sale consideration subject to the terms and conditions No.1 to 8 stipulated in Assignment Agreement dated 16.09.2011/21.09.2011 as Assignee/Purchaser and towards advance part payment of sale consideration of Rs.3,03,840/- each and same is mentioned in the condition No.2 of the said Assignment Agreement.

Complainants further submitted that, complainants have agreed to pay a balance sale consideration of Rs.7,08,960/- at the time of registration and that was to be completed within 180 days from the date of assignment agreement.  OP has agreed to cause the execution of sale deed by land owners Smt.Munikrishnamma along with her children Narasimhamurty and others, Ramakrishnappa along with his children S.G Shekar with his children, Gundappa, Kyathamma and others, Smt.Rathnamma and her children and also agreed to provide amenities such as road, water, sewage system, drainage, electricity and compound wall.  Complainants repeatedly approached the OP for willingness to pay the balance amount for the total sale consideration.  Thereafter complainants decided not to purchase the said sites/plots and to cancel the booking due to OP could not come forward for registration of sale deed in favour of complainants as per condition No.3 of the Assignment Agreement dated 21.09.2011.

Complainants further submitted that the complainants and their SPA holder have approached the officials of OP Company employee Mr.Roopesh and others through e-mails and phone calls between the dates up to 26.05.2017 for refund of the advance amount of Rs.3,03,840/- each, along with interest 18% p.a.  But OP Company gave false assurance to the complainants to refund the amount.  Complainants have entitled to cancel the booking and such an event OP should be refund the entire amount of Rs.3,03,840/- each to the complainants along with interest 18% p.a as per terms and condition No.1 to 8 of Assignment Agreement dated 16.09.2011.  But OP has not refunded the advance amount to the complainants.  Hence complainants felt deficiency in service on the part of OP.  Complainants issued legal notice to OP on 01.03.2018 requesting for refund of advance booking amount along with interest.  OP has given reply to the notice of the complainant on 02.04.2018 by denying the claim of the complainants by using wrong and false averments and given vague with negligence reply.  Hence, complainants approached this Forum.

4. In response to the notice issued, OP appeared through their advocate and filed their version are as under:

OP submitted that the complaints are barred by limitation.  The complaints are vexatious, frivolous, hence are not maintainable either in law or on facts & liable to be dismissed in limine.  Special Power of Attorney Mr.Vasu do not have personal knowledge of the transaction that has happened between the complainants and the OP.  OP is a developer who is forming layouts by obtaining land from land owners and site amount from the site buyers in order to provide them a site for constructing houses by them within stipulated time.  Since site No.147 & 148 have been booked and assignment agreement has been made and an advance amount of Rs.3,03,840/- has been paid by each of the complainant to the OP.  Each of the complainants have agreed to pay the balance sale consideration of Rs.7,08,960/-.

OP submitted that the complainants have not approached the OP to show their willingness to pay the balance amount and get registration in their favour.  Thus complainants have violated the assignment agreement and has not approached the OP in time either seeking the registration of the sites or for cancellation of the sites.  The complainants never approached for refund of the advance amount till February 2017 when the required the refund of amount which could not be granted as it was time barred and justifiable.  The complainants are not entitled to refund of the entire amount paid along with interest.  The complainants have not suffered from mental agony due to OP deficiency of rendering service to the complainant.  On the other hand the OP which has incurred financial loss and hardship because of the complainants not registering the site by paying the balance sale consideration amount.

OP submitted that the complainants have issued a legal notice and it has replied by the OP which has rightly stated the facts and even offered to the complainant an alternative site.  However the complainants have shown any interest to own or purchase the site for their residency but they were only interested to have sites for commercial purposes.  The complainants have requested for refund of advance amount in the notice, the request for time barred since it was issued on 01.03.2018 and the assignment agreement was dated 16.09.2011/21.09.2011 specifying transaction to be completed within 180 days.  The complainants have not only violated the terms and conditions of the booking as well as assignment agreement and their by lost right to claim any amount from the OP. 

OP further submitted that in case site buyers do not pay the agreed amount in time to get register their sites the OP will be put in to irreparable loss and hardship as it happened in the present context.  Each of the complainants have booked 2 sites in Max Sindhur Project, not for constructing a house but for using them for commercial purpose to make money by way of sale, interest and compensation.  There is no cause of action to file these complaints on the basis of the legal notices.  Complainants are deliberately avoided purchase of booked sites in time.  There is no deficiency of service on the part of the OP.  Hence OP prayed for dismissal of the complaints with exemplary cost.  

5. In the course of enquiry into the complaints SPA holder of complainants and OP has filed their affidavits reproducing what they have stated in their respective complaints and objections.  Complainants and OP have submitted their written arguments.  Complainants and OP has produced certain documents.  We have heard the arguments of complainants and OP and we have gone through the oral and documentary evidence of both parties scrupulously and posted the case for order.

6. Based on the above materials, the following points arise for our consideration;  

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

REASONS

8. Point No.1:- The preliminary contention of the OP that the complaints are barred by limitation.  The OPs submitted that each of the complainants have booked sites and paid advance amounts in the year 2011.  Complainants have approached this Forum after lapse of 7 years.  Hence complaints are barred by limitation.

         9. On perusal of the documents produced by the complainants the OP has accepted the amount in the year 2011 for plot 147, 148, 121 & 122.  Complainants in his affidavit evidence submitted that the complainants have requested for cancellation of agreement and refund of booking amount.  Till today OP has not cancelled the booking nor executed a site in favour of complainants.  Despite several approaches made by the complainants, finally complainants got issued a legal notice to OP on 01.03.2018 calling upon to refund the advance amount along with interest at 18% p.a.  To substantiate the contention the complainants produced email correspondence & telephone calls.  The said documents has not been disputed by the OP.  Hence it is proper to accept that the complainants had approached OP for demanding to execute the sale deed or refund the advance amount paid with interest.  Hence there is a continuous cause of action.  Further the decision of Hon’ble Supreme Court in Civil Appeal No.3883/2017 in the case of Nationa Insurance co., ltd.,vs. Hindustan Safety Glass Works ltd., it is held at para 18 as here under:

18.it is necessary for the courts to take a pragmatic view of the rights of the consumer principally since it is the consumer who is placed at a disadvantage vis-à- vis the supplier of services or goods. It is to overcome this disadvantage that a beneficent legislation in the form of the Consumer Protection Act, 1986 was enacted by Parliament. The provision of limitation in the Act cannot be strictly construed to disadvantage a consumer in a case where a supplier of goods or services itself is instrumental in causing a delay in the settlement of the consumers claim. That being so, we have no hesitation in coming to the conclusion that the National Commission was quite right in rejecting the contention of National Insurance in this regard.

10. Further Hon’ble National Commission held in R.P No.3097/2012 between Raghava Estates Ltd., Vs. Vishnupuram Colony Welfare Association & Anr, wherein at the concluded para it is held as under:

“There is immovable property and the amenities promised by the OP were not provided, the National Commission held that it can be construed as continuing cause of action and it cannot be said to be barred by time.” 

In the light of the above referred judgments and based on the documents submitted by the complainants we are of the opinion that there is a continuous cause of action and the complaints are within the limitation period as per the sec.24 (A) of the C.P Act, 1986.

11. On perusal of the pleadings, evidence and documents produced by both the parties, it is an admitted fact that the complainants approached the OP to purchase sites in the layout formed and developed by OP in the name and style called “Max Sindhur” in different survey numbers of Singrahalli Village, Kundana Hobli, Devanahalli Taluk, Bangalore Rural District.  The complainants have booked the site in the above said layout and made a payment as hereunder.

  12. The complainants alleged that complainants have approached the OP several times to execute the sale deed in their favour by accepting the balance payment.  Till today OP has not executed the sale deed in their favour hence complainants sought for refund of the amount.

13. On perusal of the assignment agreement clause 2.2 which reads here as under:

2.2) The Assignee/s shall pay the balance sale consideration of Rs.7,08,960/- (Rupees Seven Lakhs Eight Thousand Nine Hundred  and Sixty only) at the time of registration of Absolute Deed of Sale in his favour.

Further on perusal of clause 3 which reads here as under:

3) TIME FOR COMPLETION:

The sale shall be completed within 180 days from this date and the ASSIGNOR and original owners shall obtain and furnish the copies of title documents in respect of the Schedule Property, within the said period.

14. Admittedly the OP has executed assignment agreement in favour of complainant No.1 & 2 on 16.09.2011 and 21.09.2011 respectively by accepting Rs.3,03,840/- from each of the complainant.  As per clause-3 of the agreement OP has to execute the sale deed in favour of the complainants within 180 days by accepting balance amount.  Admittedly after completion of 180 days OP has not executed the sale deed in favour of the complainants by receiving remaining balance amount.  After several approaches OP kept quiet and not come forwarded to execute the sale deed in favour of the complainants.  Further the OP contended that the above said sites are reserved for the complainants & the project is going delayed because of the Writ Appeal No.4394/2013 pending before the Hon’ble High Court of Karnataka.  If the complainants want the above said site they have to wait for final order of the Hon’ble High Court of Karnataka otherwise the OP is ready to give an alternative plot as per the present market value if they fulfills the terms and conditions.  The contention of OP cannot be acceptable since OP has not produced any iota of evidence to prove that the site which was allotted to the complainant was pending before the Hon’ble High Court of Karnataka.  Further the OPs have also not produced any documents to show that they have issued any notice with regard to the alternative site provided by OP. 

15. Admittedly OP has agreed to execute the sale deed in favour of complainant within 180 days from the date of assignment agreement.  Till day OP has not executed sale deed in favour of the complainants by accepting balance amount.  Further as per Ex-A4 each of the complainants have requested the OP for refund of the amount.  The OP till date not cancelled the booking and refunded the amount as agreed nor executed the sale deed.  This amounts to deficiency in service on the part of OPs. 

16. In view of the discussions made above the complainants who have invested their hard earned money to purchase of sites must have been put to great inconvenience and mental agony.  OP has absolutely no right to retain the advance amount paid by each of the complainants after having failed to register the sites in their favour.  Therefore, OP has to be directed to refund the amount received from each of the complainants together with interest @ 7% p.a from the date of actual receipt till the date of realization.  Further OP has to be directed to pay compensation of Rs.10,000/- to each of the complainants for having caused them great inconvenience and mental agony together with litigation cost of Rs.10,000/- to each one of them.  Accordingly, we answer the point No.1 affirmative in part.

17. Point No.2: In the result, for the foregoing reasons, we proceed to pass the following order:  

  O R D E R

The complaint Nos.1393/2018 & 1394/2018 are filed by the complainants U/s.12 of the Consumer Protection Act, 1986 are allowed in part. 

The OP in complaint No.1393/2018 is directed to refund the advance amount received from complainants together with interest @ 7% p.a from the date of payment till the date of realization.  Further OPs shall pay compensation of Rs.10,000/- together with litigation cost of Rs.10,000/-.

The OP in complaint No.1394/2018 is directed to refund the advance amount received from complainants together with interest @ 7% p.a from the date of payment till the date of realization.  Further OPs shall pay compensation of Rs.10,000/- together with litigation cost of Rs.10,000/-.

This order is to be complied by the OP within 45 days from the date of receipt of this order. 

Supply free copy of this order to both the parties.

This original order shall be kept in complaint No.1393/2018 and a copy of it shall be placed in other connected file.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 03^rd day of June 2020)

Witnesses examined on behalf of the complainants by way of affidavit:

Copies of documents produced on behalf of complainants:
Complaint No.1393/2018.

Witnesses examined on behalf of the OP by way of affidavit:

Mr.Kesava K.

Documents produced on behalf of Opposite Party:

Copies of documents produced on behalf of complainant:
Complaint No.1394/2018.

Witnesses examined on behalf of the OP by way of affidavit:

Mr.Kesava K.

Documents produced on behalf of Opposite Party:

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