Karnataka
Bangalore 4th Additional
CC/1161/2018
Mr M.Chandrashekar, - Complainant(s)
Versus
M/s Maxworth Realty India Pvt Ltd., - Opp.Party(s)
12 Feb 2020
ORDER
BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM BENGALURU
1ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.
12thDAY OF FEBRUARY 2020
PRESENT |
SMT.PRATHIBHA. R.K., BAL, LLM - PRESIDENT |
SMT.N.R.ROOPA, B.A., LLB, MEMBER |
COMPLAINT Nos.1161/2018&1162/2018 |
Complaint No.1161/2018
| 1) Sri.M.Chandrashekar, 2) Mrs.Gayatridevi C, Represented by their Power of Attorney Holder, Sri.J.P Mohan Vittal, |
Complaint No.1162/2018
| Ms.Pallavi D, Represented by her Power of Attorney Holder, Sri.J.P Mohan Vittal, Advocate – Sri.P.BAjith
V/s
|
opposite partIES | 1)M/s Maxworth Realty India Pvt. Ltd., Rep. by its
2) Mr.Kesava K, Advocate – Mamatha U.M |
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 Parties (herein after referred as OPs). The issues involved in these complaints are one and the same and the reliefs sought in each of the complaints are almost identical. Hence all these 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 thesetwo complaints are almost same. The brief averments made in these complaints are as under:
The complainants submitted that the Opposite party-1 had advertised regarding the formation of sites in the layout called as “Max Orchids Phase III” in different survey numbers of Dyavarahalli Village, Kundana Hobli, Devanahalli Taluk, Bangalore Rural District in the month of February 2014. The complainants/Power of Attorney being interested in purchasing the sites near Bangalore approached OP-1 in the month of March 2014 expressing their willingness to purchase a sites in the proposed layout. OP-2 is Managing Director of OP-1 explained about the project to the complainants and shown the plan and asked to select the sites in the aforesaid plan. The complainants/power of attorney have selected the sites of their choice. The complainants filled the booking form and made a payment towards development of the above said sites and selected the sites and the complainants made the payment towards advance amount. In this regard the OP-1 issued the receipt towards the payment. OP-1 insisted that the Sale Agreement in favour of complainants would only be executed upon paying 30% or more of the total sale consideration per site as agreed between them. The particulars of the advance amount paid by the complainants, name of the project, site number in which they have invested money etc., have been given in detail in the following table.
Sl | Complaint Number | Name | Site Number as per booking | Change in site number (if any) | Amount | Date
|
1) | 1161/2018 | Max Max-Sankalpa | 45, 47
| 306
| 1)Rs. 50000/- | 18.01.2015 |
Rs.200000/- | ||||||
2) | 1162/2018 | Max Max-Sankalpa | 46 | 307 | 1)Rs. 50000/- | 06.04.2014 |
Rs.200000/- |
Complainants further submitted that on the instructions of OP-1 and in anticipation of conclusion of a sale deed, the complainants/power of attorney paid the aforesaid amounts as payments towards the purchase of the site. After payment of the aforementioned amounts the OPs assured that the complainants will be able to buy the sites at the price fixed at the time of booking and that the OP-1 would deliver possession within 18 months from the date of sale agreement, which was to be executed by the OP in favour of the complainants.
The complainants further submitted that after made payment of 30% the complainants repeatedly visited and requested for registration of the sale deed in their favour with respect of the properties as assured by the OPs. The OPs have assured that sale deed will be done shortly. The complainants further submitted that the OP-1 did not receive the sanction to form the layout in the proposed land. Hence the complainants approached the OP-1 to allot a sites to the complainants in another project at different location. Even this led to no outcome and without any other option the complainants approached the OP-1 on 20.11.2016 requesting for registration of the property to them or refund of the entire amount paid by the complainants. OP-1 acknowledged receipt of application for refund and assured for refund, refund will be made within 6 months. Till today OPs have not refunded nor allotted the sites to complainants. Hence complainants issued legal notice on 28.02.2018 calling upon OPs to pay the advance amount paid, interest and compensation. The legal notice issued to OPs have returned with an endorsement ‘left the address’. The complainants further submitted that the complainants have invested their hard earned money in the hopes of buying a sites in the above said projects. OPs have failed to perform their part of the contract and have failed to refund the considerable amount paid by the complainants as agreed by them. Hence there is a deficiency of service on the part of OPs. Hence, complainant approached this Forum.
4. In response to the notice issued, OPs.1 & 2 appeared through their advocate and filed their version are as under:
OPs submitted that the complaints are barred by limitation, vexatious, frivolous, hence complaints are not maintainable either in law or on facts& liable to be dismissed in limine. The OPs developed the lands situated at Dyavarahalli Village, Kundana Hobli, Devanahalli Taluk, Bangalore Rural District into a residential layout called Max-Orchids.
OPs submitted that the complainants in complaint No.1161/2018 have booked site No.45, measuring 30x40 totally 1200 square feet in Max-Sankalpa project and paid an advance amount of Rs.50,000/- by way of cheque dated 20.02.2018. At the same time the complainant No.1 himself transferred his entire booking amount to complainant No.2 Gayathridevi and Pallavi D each Rs.25,000/- for site No.306 & 307 of Max Orchids. Therefore the complainant has not outstanding due with the OPs to claim. Complainant No.2 has booked site No.306 measuring East to West 30 feet and North to South 40 feet in Max Orchids project and paid advance amount of Rs.50,000/- by way of cheque dated 30.03.2014 and transferred amount from 1st complainant is of Rs.25,000/- and Pallavi D has transferred Rs.1,00,000/-. Hence the 2nd complainant has only having Rs.1,75,000/- but in the complaint, complainant wrongly claimed for Rs.2,00,000/-.
The OPs further submitted that the complainant in complaint No.1162/2018 has booked site No.46 in Max-Sankalpa project, thereafter herself changed the site No.307 measuring East to West 40 feet and North to South 30 feet, totally measuring 1200 square feet in Max-Orchids project. The complainant has paid an advance amount of Rs.1,00,000/- as per receipt No.2 & 4 para No.5 of the complaint, the payment was made by way of various cheques and dates out of total sale consideration of Rs.7,20,000/-. But the complainant stated in the complaint that payment was made of Rs.2,00,000/-.
The OPs further submitted that the OPs have replied to the legal notice sent by the complainants. OP-1 is a registered company under the Companies Act, running the Real Estate business by purchasing the lands, formation of layout, construction of Flats and commercial buildings and selling the same in the name and style of ‘Maxworth Realty India Ltd.,’ and having acquired good will amongst other Real Estate Company all over India, having its office in Bangalore and other cities in Karnataka State.Complainants themselves not ready and willing to purchase the sites as per the terms and conditions of the booking form and even not contacted the OPs by arranging the balance sale consideration. But after lapse of more than 4 years the complainants alleged that they have filed complaints against the OPs to create cause of action and limitation. Therefore the complainants have no limitation to file these complaints.
OPs further submitted that as per booking form terms and conditions sale agreement should be executed within 20 days from the date of booking or stipulated period time only after payments of 30% of the total sale consideration. But the complainant has violated the booking form terms and conditions, hence breached the terms of the contract and further they were not interest to purchase the sites. OP may times informed the complainants to pay the balance amount and get registered the sale deed but the complainants have not agreed for the same, hence the claim of the complainants is baseless. Complainants have claimed wrong booking amount along with self-calculated interest together with exorbitant interest and compensation. OP has not dragged to execute the absolute sale deed. There is no deficiency of service on the part of the OPs. Therefore payment of interest, compensation, litigation cost claimed by the complainant exorbitantly also does not arise.Hence OPs prayed for dismissal of the complaints.
5. In the course of enquiry into the complaintsthe complainants and the OPs have filed their affidavits reproducing what they have stated in their respective complaints and objections. Complainants and OPs havesubmitted their written arguments. Complainants and OPs have produced certain documents. We have heard the arguments of complainants and OPs 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;
1) | Whether the complainants proves the deficiency of service on the part of OPs, if so, entitled for the relief sought for? |
2) | What order? |
7. Our answer to the above points are as under:
Point No.1:- | Affirmative in part |
Point No.2:- | As per final order |
REASONS
8. Point No.1:- On perusal of the pleadings, evidence and documents produced by both the parties, it is an admitted fact that the complainants approached the OPs to purchase sites in the layout formed and developed by OPs in the name and style called “Max Orchids Phase III” and Max-Sankalpa in different survey numbers of Dyavarahalli Village, Kundana Hobli, Devanahalli Taluk, Bangalore Rural District in the month of February 2014 and 2015. As per the receipt & account statement of the complainants. The complainants have booked the site in the above said layout and made a payment as hereunder.
Sl | Complaint Number | Project Name | Site Number | Amount paid | Date |
1) | 1161/2018 | Max-Orchids Max-Sankalpa | 306 45, 47 | 1)Rs.50000 2)Rs. 50000 3)Rs. 50000 | 30.03.2014 18.01.2015 28.03.2015 |
Rs.150000
| |||||
2) | 1162/2018 | Max-Sankalpa Max-Orchids
| 46 307 | 1)Rs.50000 2)Rs. 50000 3)Rs. 50000 4)Rs. 50000 | 06.04.2014 23.02.2015 01.07.2015 10.08.2015 |
Rs.200000
|
The complainants alleged that complainants have approached the OPs several times to execute the sale deed in their favour by accepting the balance payment. Till today OPs have not executed the sale deeds in their favour hence complainant sought for refund of the amount.
9. Admittedly OPs have not executed the sale deeds in favour of the complainants by receiving the remaining balance amount. After several approaches OPs have kept quiet and not come forward to execute the sale deed in favour of the complainants. Further the OPs have taken a contention that, OPs are always ready to execute the sale deed in favour of the complainants but the complainants have not come forward to register the sites in their name. The contention of OPs cannot be acceptable. Since OPs have not produced any iota of evidence to prove that they have issued a demand notice to the complainants to pay the remaining balance amount and register the sites in their favour. Without any documentary evidence, the oral contention of the OP cannot be acceptable. Further as per the booking form Ex-B1 & B2 the OPs have agreed for refund of the advance amount in case of cancellation of booking. The said amount will be refunded within 30 working days from the date of cancellation. Further in the booking form it clearly mention that the sale agreement will be executed within 20 days from the date of booking. As per Ex-A12, 13 the complainant requested for cancellation of booking on 20.11.2016. The OPs 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.
10. Further the contention of the OPs 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 2014 & 2015. Complainants have approached this Forum after lapse of 4 years. Hence complaints are barred by limitation.
11. On perusal of the documents produced by the complainants the OPs have accepted the amount in the year 2014 & 2015 for plot No.306, 307, 45, 46 & 47. Admittedly the complainants have paid the advance amounts in the year 2014 & 2015. The complainants have requested for cancellation of booking on 20.11.2016 and 07.12.2017. Till today OPs have 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 OPs on 20.03.2018 calling upon to execute the sale deed or refund the advance amount. To substantiate the contention the complainants produced letters issued to the OPs dated 20.11.2016 and 07.12.2017 demanding to execute the sale deed or refund the advance the amount paid with interest. Hence there is a continuous cause of action. Therefore the complaints are within the limitation period as per the sec.24 (A) of the C.P Act, 1986.
13. 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. OPs have 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, OPs have to be directed to refund the amount received from each of the complainants together with interest @ 10% p.a from the date of actual receipt till the date of realization. Further OPs have 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.
14. 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.1161/2018&1162/2018 are filed by the complainants U/s.12 of the Consumer Protection Act, 1986 are allowed in part.
The OPs in complaint No.1161/2018 are directed to refund the advance amount received from complainants together with interest @ 10% 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 OPs in complaint No.1162/2018 are directed to refund the advance amount received from complainant together with interest @ 10% 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 OPs within 30 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.1161/2018 and a copy of it shall be placed in other connected files.
(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 12thday of February 2020)
(ROOPA N.R) (PRATHIBHA R.K)
MEMBER PRESIDENT
Witnesses examined on behalf of the complainants by way of affidavit:
1) | Mr.J.P Mohan Vittal, Complaint No.1161/2018. |
2) | Mr.J.P Mohan Vittal, Complaint No.1162/2018. |
Copies of documents produced on behalf of complainants:
Complaint No.1161/2018.
Ex-A1 | Copy of special power of attorney by M.Chandrashekar |
Ex-A2 & 3 | Copy of special power of attorney by Gayatridevi C. |
Ex-A4 & 5 | Copy of Technical Approval by Department of Urban and Rural Planning and Description of Schedule. |
Ex-A6 | Copy of Technical Approval by Department of Urban and Rural Planning and layout plan. |
Ex-A7 to 9 | Copy of payments receipts of M.Chandrashekar and Gayatridevi C. |
Ex-A10 | Copy of journal voucher of M.Chandrashekar and Gayatridevi C. |
Ex-A11 to 13 | Copy of request for refund letters. |
Ex-A14 | Copy of legal notice |
Ex-A15 & 16 | Postal receipts with returned postal covers. |
Ex-A17 | Copy of passbook. |
Witnesses examined on behalf of the OPs by way of affidavit:
Mr.Kesava.
Documents produced on behalf of Opposite Party:
Ex-B1 | Copy of booking form dated 06.04.2014. |
Ex-B2 | Copy of booking form dated 18.01.2015 |
Ex-B3 | Copy of amount transferred letter given by complainant. |
1) | Copy of authority. (I (2015) CPJ 105 (NC) |
2) | Copy of judgment in CC No.791/2016. |
3) | Copy of judgment (First Appeal No.117/2014) |
Copies of documents produced on behalf of complainant:
Complaint No.1162/2018.
Ex-A1 | Copy of special power of attorney |
Ex-A2 to 6 | Copy of Technical Approval by Department of Urban and Rural Planning and Description of Schedule. |
Ex-A7 to 10 | Copy of Technical Approval by Department of Urban and Rural Planning and layout plan. |
Ex-A11 | Copy of payments receipts of Pallavi. D. |
Ex-A12 to 14 | |
Ex-A15 to 17 | Copy of request for refund letters. |
Copy of legal notice and postal receipts with returning covers. |
Witnesses examined on behalf of the OPs by way of affidavit:
Mr.Kesava.
Documents produced on behalf of Opposite Party:
Ex-B1 | Copy of booking form dated 06.04.2014. |
Ex-B2 | Copy of booking form dated 22.02.2015 |
1) | Copy of authority. (I (2015) CPJ 105 (NC) |
2) | Copy of judgment in CC No.791/2016. |
3) | Copy of judgment (First Appeal No.117/2014) |
(ROOPA N.R) (PRATHIBHA R.K)
MEMBER PRESIDENT
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