Date of Filing:22.08.2019

Date of Disposal:09.03.2023

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION BENGALURU

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

       ORDER

SRI RAMACHANDRA.M.S,

PRESIDENT

1. The complainant files a complaint with this Commission under Section 12 of the Consumer Protection Act,1986 with a direction to the OP to repay balance amount of Rs.66,860/- along with interest at 24% p.a., cost of the proceedings and such other reliefs.

2.   The following are the complaint's key facts: 

The complainant submits that the marketing team of OP company explained the complainant about their new project name “MAX SINDHUR” formed in land bearing Sy.no.49, Singahalli village, Kundanahalli hobli, Devanahalli Tq., BengaluruRural Dist. After visiting the project place the complainant along with his friends intended and agreed to purchase sites in Max Sindur Project. The complaint submits that after negotiations rate of Rs.450/- per sq.ft was fixedand the complainant agreed to purchase two sites bearing no.40 & 41 and assignment agreement dt.03.02.2012 came to be entered into the complainant and OP for a total sale consideration of Rs.10,80,000/- and the complainant has paid advance amount of Rs.3,24,000/- by way cheques to the OP in four occasions and remaining balance consideration amount shall be payable at the time of registration of sale deed and the OP have acknowledged the same. The complainant further submits that as per assignment agreement clause-3 the registration of sites should be completed within 180 days from the date of agreement, but the OP has not completed the sale process and sought more time to execute registered sale deed in favour of the complainant. The complainant further submits that even after lapse of 08 years, the OP has not registered the sites in favour of the complainant and assured to accommodate site in another layout with higher value, but the complainant not afford for the same. The OP have agreed through letter dt.24.05.2015 for refund the amount along with 10% compounded interest and OP have refunded part of the amount, but not refunded the balance amount. The complainant got issued legal notice dt.14.06.2019 calling upon the OP to refund the balance amount, but the OP has not replied for the said notice. Hence, due to the act of the OP, the complainant was forced to file the present complaint.

3. Notice to OP served, the counsel appeared and filed written version and affidavit.

4. The complainant filed chief-examination affidavit along with relevant documents in support of the pleading.

5. Heard arguments. The matter is reserved for order.

6.  The points that arise for our consideration are;

1. Whether the Complainant prove that there is deficiency of service on the part of the OPs as alleged in the complaint and thereby prove that he is entitle for the relief sought?
2. What order?

7. The findings on the above points are as under:

Point No.1         :       Affirmative

Point No.2         :       As per final order

REASONS

8. POINT NO.1:- On perusal of the chief-examination of the complainant and version of OP, it is observed that the OP being the developer of plots and also engaged in the business of construction of apartments. As such the OP has approached this complainant when they visited the office of the complainant and they have explained about the new project named “MAX SINDHUR” formed in the land situated at Devanahalli Tq., Bengaluru Dist. As the complainant was interested to purchase the plot in and around Bengaluru. After visiting the spot as the complainant was impressed by the locality where the said proposed layout to be formed. The complainant along with his friends have agreed to purchase the site in the said project. After negotiation with the OP for a sum of Rs.450/- per sq.ft was fixed and the complainant has agreed to purchase two sites and assignment agreement came to be executed on 03.02.2012. It is also agreed the total sale consideration for the sites is agreed at the rate of Rs.10,80,000/- and out of which the complainant has paid an advance sale consideration of Rs.3,24,000/-  at the time of execution of the agreement and it is also agreed for possession of the site, on execution of registered sale deed by  handing over plot to the complainant within 180 days from the date of agreement. It is further noted that despite of receipt of the advance amount and even after lapse of 180 days the OP has failed to complete the formation of the layout and which resulted in  delay in allotting the sites to the complainant. The complainant has made best efforts in order to get the sites, but all the efforts of the complainant went on vain, nothing is materialized. The OP has miserably failed to comply the terms and conditions of the agreement. As aggrieved by the act of the OP, the complainant was forced to file the complaint and sought the relief for refund of amount along with interest and other reliefs as prayed in the complaint.

9. The OP is represented by the counsel filed detailed version. They denied the entire complaint allegations and also any deficiency on their part. The specific contention of the OP is that the allegations of the complainant is that they have raised point of limitation, since the assignment agreement has entered between the parties is on 03.02.2012 and the present complaint came to be filed in the year 2019. On this point the OP agitated that there is delay in  filing the present complaint. As per provisions of Consumer Protection Act, the complainant should have filed the complaint well within 02 years. This complaint came to be filed after the delay of 07 years and there is no whisper in the entire complaint with regard to the delay in filing the complaint. Delay of  condonation application is also not filed. On this ground the OP prays for dismissal of the complaint as it is barred by limitation. Another ground on which the OP contended that the agreement for purchase of 02 sites is that the complainant intends to  purchase 02 sites, it is for commercial transaction and on this ground the complainant cannot be considered as consumer. By contending the same, the OP has prayed for dismissal of the complaint on the above grounds.

10. The first and fore most contention of the OP is that the point of limitation that the present complaint is filed after lapse of 07 years, which is beyond the period of limitation period of  02 years  as per the C.P.Act. In answer to this the Commission has held that the orders of  Appellate Court Rulings of both Hon’ble Apex Court of India and  Hon’ble National Consumer Disputes Redressal Commission has reiterated the point of limitation how it should be calculated when the cause of action arises to file the complaint in such transaction.  It is also held that  the cause of action in the complaint is a continuity  cause of action as long as the OP either refund the amount or handed over the possession of the plot as agreed. The cause of action to the complaint is continues cause of action as long as the OP complied either of the conditions. In such event by the applying the principles of Apex court, the commission has held that the present complaint is well within the limitation period and the contention of the OP that the complaint is barred by limitation is liable to be rejected.

11. On the point of commercial transaction, the contention of the OP cannot be considered for the simple reason that the point of commercial transaction or allegations needs to be proved by the person who ever makes allegations as against the complainant. Here, the OP has merely contended that the purchase of 02 sites is for the commercial transaction. Apart from making mere allegations, the OP has failed to establish the commercial transaction of the complainant. As the entire burden of commercial transaction lies on the OP for want of evidence in support of the contention. The contention of commercial transaction cannot be accepted, it is liable to rejected as not proved.

12. While executing the assignment agreement dt.03.02.2012, it is entered between the complainant and OP. The document no.6 is an agreement copy produced which clearly shows that the complainant intended to purchase 02 sites bearing no.40 & 41 in the layout called MAX SINDHUR, wherein the total sale consideration for the both sites is fixed at Rs.10,80,000/- and out of which the complainant has paid a sum of Rs.3,24,000/- on 04 occasions. It is also an agreement between the parties that balance sale consideration of Rs.7,56,000/- shall have to be paid at the time of registration of sale deed in favour of the complainant. It is pertinent to note that the terms of agreement for completion of the said project is fixed at 180 days. On perusal of all the documents, the commission has held that the complainant’s allegations which is made against the OP is to be held as proved fact beyond  all reasonable grounds. The delay in handing over the possession of the site is apparent from the record. The negligence and carelessness in the service of the OP is visible from their conduct. As such the act and  omission of OP amounts to  deficiency in service. For which they are held liable to pay legitimate claim of complainant along with other reliefs as granted in the complaint.

13.  Since the OP is involved in the commercial transaction and real estate business. As the amount paid by the complainant is kept and used by the OP for his business purpose. When such being the case the OP is liable to pay higher rate of interest on the refund of said amount. Accordingly, the Point No.1 we answer in affirmative.

14. POINT NO.2:- In the result, we passed the following:

ORDER

1. The complaint is allowed in part.
2. The OP is directed repay Rs.3,24,000/- along with interest at 12% p.a. from the last date of payment to the complainant till payment is made.
3. The op is further directed to pay compensation of Rs.25,000/-  and Rs.5,000/- towards cost of litigation within 45 days. If the OP fails to comply the order, compensation amount and cost of litigation will carry interest at 6% p.a. for non-compliance of the order.

4. Furnish free copy of this order to both the parties. 

 (Dictated to the Stenographer, got it transcribed, typed by him and corrected by me, then pronounced in the Open Commission on 9^th March 2023)

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)         (CHANDRASHEKAR S.NOOLA)       

         MEMBER                                        MEMBER

Witness examined on behalf of the complainant by way of affidavit:

Sri Prakash.K.N-who being the complainant

Documents produced by the complainant:

Witness examined on behalf of the OP by way of affidavit: Nil

Documents produced by the OP   :

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)          (CHANDRASHEKAR S.NOOLA)

         MEMBER                                     MEMBER

SKA*