Date of Filing: 21/11/2015
Date of Order: 09/11/2017
ORDER
BY SRI.SYED ANSER KHALEEM, PRESIDENT
1. This is the complaint filed under Section 12 of the Consumer Protection Act, 1986 alleging the deficiency in service against the O.P and prays for orders to direct the O.P to pay a sum of Rs.3,24,000/- along with interest at the rate of 18% from the date of payment till its realizations in respect of site No.347, as compensation along with other relief.
2. The brief facts of the complaint are that, in response to the advertisement given by the O.P in the first week of March-2013 in a news paper in respect of forming residential vacant sites in survey No.148/1, measuring to an extent of 4 acre in survey No.149/1 measuring to an extent of 3 acre 19 gunta, in survey No.136 measuring to an extent of 1 acre and in survey No.148/2 measuring to an extent 1acre 10 gunta situated at Suradhenapura Village, Hessaraghatta Hobli Bangalore North Taluk, Bangalore and the O.P developing the project and under the name and style of Max Medows Phase –III and hence the complainant visited the O.P. It is stated that in order to purchase the site property, the complainant made the payment of Rs.3,24,000/- to the O.P through cheques as advance amount and the O.P issued receipts for the said payments made by the complainant. Further it is agreed between the parties that the balance sale consideration of Rs.7,56,000/- to be paid by the complainant at the time registration of absolute sale deed. In view of sale agreement complainant booked a site / plot No.347 for total consideration of Rs.10,80,000/- and it is mentioned in the agreement of sale and the O.P promised to complete the sale within 6 month from the date of agreement and O.P shall get BIAAPA approval for the layout before registration of sale deed. Further states that as per the said agreement dated 27.04.2013 the O.P failed to comply the terms of the agreement and on 11.10.2013 the original assignment agreement dated 27.04.2013 was modified and O.P sought for further extension of 6 months with effect from 11.10.2013. Further states that even after modifying the original agreement the O.P failed to execute absolute sale deed in favour of complainant and once again on 26.05.2014 the original assignment agreement dated 27.04.2013 was modified and sought further extension of 6 months with effect from 26.05.2014 and thereby keeping original agreement dated 27.04.2013 to remain in force and effect to be read in conjunction with addendum. Further it is stated even after completion of 6 months with effect from 26.05.2014 the Op failed to execute sale deed in favour of complainant. Further states that complainant approached O.P and sought for refund of the advance amount and the O.P assured the complainant that the amount would be refunded within 3 months but the O.P did not refund the amount. Thereafter, Complainant got issued the legal notice which was duly served on the O.P, but did not comply the demand made in the notice. Hence this complaint.
3. Upon issuance of notice O.P entered appearance through its counsel and filed its version. In the version it is admitted that they developed the residential sites layout called the Max Meadows III situated at Suradhennapura village, Hesaraghatta hobli, Bangalore North Taluk. It is also admitted that the complainant has booked the residential site bearing No 347 in the said project measuring 40 x30 Sq.ft and total cost of plot is Rs.10,80,000/- Further admitted that the complainant has booked the said site by paying the booking amount of Rs.30,000/- through cheque dated 18-03-2013 being the part of the sale consideration and further paid Rs.20,000/- through cheque dated 04-04-2013 also paid Rs.2,74,000/- through cheque dated 20-04-2013 out of the sale consideration of Rs.10,80,000/- It is contended that the complainant never approached the O.P to allot the site and he is not ready and willing to purchase as mention in the complaint. Further contended that if the complainant paid the full sale consideration O.P definitely would allot the site and executed the sale but the complainant suppressed the fact and filed this complaint. It is contended that complainant did not given any cancellation letter for refund of the amount and O.P agreed to refund the amount by deducting the 15% of booking amount towards service and transport charges as per the booking terms and conditions of refund. Further contended that the above said site is reserved for the complainant but the complainant has not paid the balance sale consideration even several calls were made with regard to registration of the site but no response from the complainant. With the above grounds O.P contended that there is no deficiency in service from its part and agreed to refund the amount of Rs.3,24,000 to the complainant.
4. In order to substantiate the case of the parties and both parties filed their affidavit evidence and we also heard the arguments.
5. On the basis of the pleadings of the parties, the following points will arise for our consideration:-
(A) Whether the complainant has proved
deficiency in service on the part of the O.P?
(B) Whether the complainant is entitled to
the relief as prayed for in the complaint?
(C) What order?
6. Our answers to the above points are:-
POINT (A): In the Affirmative
POINT (B): In the Partly Affirmative
POINT (C): As per the final order
for the following:
REASONS
POINT No. (A):-
7. On perusal of the rival pleadings of the parties it is not in dispute that the complainant approached the O.P with an intention to purchase the site property bearing No 347 measuring 40 x 30 from the O.P layout called the Max Meadows III situated at Suradhennapura village, Hesaraghatta Hobli, Bangalore North Taluk. Further it is also not disputed the sale consideration of the site property is fixed for Rs.10,80,000/- and the complainant paid total amount of Rs.3,24,000/- through cheques on different dates.
8. The sole allegation of the complainant is that the O.P agreed to deliver the site property within six months from the date of the agreement but the O.P did not do so, whereas the O.P executed another agreement on 27-04-2013 where in which O.P sought another six months time to deliver the site. Further alleged that the once again the O.P on 26-05-2014 modified the agreement and sought further extension of time and hence the complainant demanded to refund of the amount paid with interest.
9. Per contra O.P contended that the complainant never given any cancellation letter and also not approached the O.P to pay the balance sale consideration in order to registered the site or to allot the site in favour of the complainant. Further contended that O.P is ready and willing to registered the site property if the complainant is ready to purchase the same by paying the balance sale consideration and hence O.P contended that there is no deficiency in service on their part but there is deficiency from the complainant.
10. It is pertinent to note that, there is no dispute that the complainant paid Rs.3,24,000/- to the O.P towards part sale consideration and the O.P fairly admitted. However the O.P did not say anything that the original agreement was modified by way of addendum to the assignment agreement for couple of times as the O.P sought time to deliver the site property to the complainant and naturally it creates a kind of apprehension in the mind of the complainant and hence the complainant sought for the refund of the amount. Further on perusal of the legal notice dated 8th October 2015 got issued by the complainant to the O.P, it is nothing but demand made by the complainant to cancel the agreement and sought for refund of the amount but the O.P did not whisper anything about the legal notice in their version. The copy of postal receipt and the postal article delivery track record also evident that the service of notice on O.P. Furthermore even after filing the complaint and after appearance of the O.P and the O.P did not refund the amount to the complainant or not deposited the same in the Forum in order to establish the bonafides. In the light of evidence placed on record in our view O.P failed to refund the amount and it is nothing but deficiency in service. Accordingly we answered this point in the affirmative.
POINT No. (B):-
11. Further it is worth to consider that the O.P fairly admitted in the version and agreed to refund the amount to the complainant without any interest as the complainant himself not approached the O.P to pay the balance sale consideration of the site property. It is also be considered when the complainant lost faith on the O.P against the modifying the agreement by way of addendum to the assignment agreement for couple of times and it becomes naturally the reason for the apprehension for the complainant and he rightly demanded the refund of the amount and hence he might not have approached the O.P for registration of the site property and the same cannot be inferred that the complainant is not ready and willing to purchase the property. However the site property value is more as on date and if the O.P refunds the amount with interest no hardship will be caused. In the attendant circumstances of the case and looking in to fair admission by the O.P, we deem it just and proper to direct the O.P to refund the amount of Rs.3,24,000/- along with interest at the rate of 9% interest from the date of the complaint till its realization and to pay Rs.2,000/- cost of the proceedings and it will meet the ends of justice. Accordingly we answered this point in the partly affirmative.
POINT (C):
12. On the basis of the answering the point A and B and in the result, we proceed to pass the following:-
ORDER
- The complaint is hereby allowed in part with cost.
- Further the O.P authorized signatory is hereby directed to refund an amount of Rs.3,24,000 /- along with interest at the rate of 9% per annum from the date of payment till its realization to the complainant within 30 days from the date of receipt of this order.
- Further O.P. is hereby directed to pay a sum of Rs.2000/- towards cost of the proceedings.
- The O.P is hereby directed to comply the order of this Forum within 30 days from the date of receipt of this order and submit the compliance report to this forum within 45 days from the date of receipt of this order.
- Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 9th Day of November 2017)
MEMBER MEMBER PRESIDENT
SG
