Karnataka
Bangalore 4th Additional
CC/887/2018
Mrs. Padmaja Kishore, - Complainant(s)
Versus
M/s Maxworth Realty India Pvt. Ltd., - Opp.Party(s)
27 Jan 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.
27thDAY OF JANUARY 2020
PRESENT |
SMT.PRATHIBHA. R.K., BAL, LLM - PRESIDENT |
SMT.N.R.ROOPA, B.A., LLB, MEMBER |
COMPLAINT Nos.887/2018, 888/2018& 889/2018 |
Complaint No.887/2018
| Mrs.Padmaja Kishore, Represented by her Power of Attorney Holder, Mrs.Nagarathnamma, |
Complaint No.888/2018
| Ms.K.PTejasshwini, Represented by her Power of Attorney Holder, Mrs.Nagarathnamma,
|
Complaint No.889/2018
| Mr.K.P Shashank, Represented by her Power of Attorney Holder, Mrs.Nagarathnamma, Advocate – Sri.P.BAjith
V/s
|
opposite partIES | 1)M/s Maxworth Realty India Pvt. Ltd., Rep. by its Managing Director,
2) Mr.Kesava K, Advocate – Mamatha U.M |
COMMON ORDER
SMT.PRATHIBHA. R.K., PRESIDENT,
These 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 all thesecomplaints 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 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 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. Complainants entered into a sale agreement with the OPs by paying 30% or more of the total sale consideration per site. The particulars of the advance amount paid by each of the complainants, the date of agreement for sale, name of the project in which they have invested money etc., have been given in detail in the following table.
Sl | Complaint Number | Name | Site Number & | Total | Amount | Date
| Agreement for sale |
1) | 887/2018 | Max | 453
| Rs.744000/- | 1)Rs. 50000/- | 02.03.2014 | 31.01.2015 |
Rs.223200/- | |||||||
2) | 888/2018 | Max | 454 | Rs.744000/- | 1)Rs. 50000/- | 09.03.2014 | 06.09.2014 |
Rs.250000/- | |||||||
3) | 889/2018 | Max | 455
| Rs.744000/- | 1)Rs. 50000/- | 09.03.201410.03.2014 | 06.09.2014 |
Rs.250000/- |
After payment of the aforementioned amounts the OPs assured that the complainants will be able to buy the sites at the price fixed in the agreement to sale and that OP-1 would deliver possession within 18 months from the date of sale agreement.
The complainants further submitted that after sale agreement 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. OPs further submitted that OPs have developed the lands situated at Dyavarahalli Village, Kundana Hobli, Devanahalli Taluk, Bangalore Rural District. The complainants have booked the sites measuring 1200 square feet and paid the advance amount. Out of the total sale consideration OPs executed the sale agreement on 31.01.2015/06.09.2014. The OPs have denied the entire allegations of complainants except above said statement. The OPs further submitted that the OPs have replied to the legal notice sent by the complainants. Further the complainants have seek only for refund of advance amount along with interest and compensation but not ready to purchase the sites. This shows the malafide intention of the complainants.The OPs further submitted that the OPs are ready to perform their part of contract but the complainants have not ready to register the sites. Hence there is unfair trade and deficiency of service on the part of OP does not arise and OPs are not liable to pay any interest, compensation and litigation expenses.
OPs further submitted that OPs have informed the complainants to pay the balance amount and got register the sale deed. But the complainants have not agreed for the same, hence the claim of the complainants is baseless. Further the OPs submitted that the complainants have booked aforesaid sites and paid advance amount in the year 2014/2015 and the OP executed the agreement of sale dated 31.02.2015 in complaint No.887/2018 and on 06.09.2014 in complaint No.888/2018 and 889/2018. Thereafter complainants themselves not ready and willing to purchase the sites as per the terms and conditions of the booking form and sale agreement and even not contacted the OP by arranging the balance sale consideration. But after lapse of more than 3 years the complainants alleged that they have issued legal notice just to create cause of action and limitation. Therefore the complainants have no limitation to file these complaints. Hence OPs prayed for dismissal of the complaints.
5. In the course of enquiry into the complaints, each one of the complainants and the OPs have filed their affidavits reproducing what they have stated in their respective complaints and objections. Complainants and OPs have submitted 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 have agreed to purchase sites in the layout formed and developed by OPs in the name and style called “Max Orchids Phase III” in different survey numbers of Dyavarahalli Village, Kundana Hobli, Devanahalli Taluk, Bangalore Rural District in the month of February 2014. Each of the complainants have paid an advance amount and executed a agreement for sale on 31.01.2015/06.09.2014. As per the agreement for sale the balance amount will be paid at the time of registration of sale deed. Further as per agreement to sale OPs have agreed that they execute the sale deed within 18 months from the date of agreement. 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. On perusal of the agreement to sale clause 2.2 and 3 which here as under:
2.2) The Purchaser shall pay the balance sale consideration of Rs.5,20,800/- (Rupees Five Lakhs Twenty Thousand Eight Hundred only) to the Vendor at the time of registration of the sale deed.
3) TIME FOR COMPLETION
The sale shall be completed within 18 months from date of this agreement and the VENDOR shall obtain and furnish the photocopies of entire title documents in respect of the Schedule Property within the said period.
10. As per the above clause the OPs have agreed to execute the sale deeds in favour of the complainants within 18 months from the date of agreement to sale. Admittedly OPs have not executed the sale deeds in favour of each 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. Admittedly OPs have not disputed the amount received from the complainants. As per the agreement to sale clause-3 it is the duty of OPs to execute the sites in favour of complainants within 18 months from the date of agreement to sale. But the OPs have not done so, it is deficiency in service on the part of OPs.
11. Further the contention of the OPs are 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 and OPs have executed the agreement to sale in the month of January 2015/06.09.2014. Complainants have approached this Forum after lapse of 3 to 4 years. Hence complaints are barred by limitation.
12. On perusal of the documents produced by the complainants the OPs have agreed to execute the sale deeds in favour of the complainants within 18 months from the date of agreement to sale. Admittedly the complainants have executed agreement to sale in the month of January 2015/06.09.2014. Till today OPs have not executed a site in favour of complainants. Despite several approaches made by the complainants, finally complainants got issued a legal notice to OPs calling upon to execute the sale deed or refund the advance amount.To substantiate the contention the complainants produced letters issued to the OPs on 20.11.2016, 01.12.2017 and 07.12.2017 demanding to execute the sale deed or refund the advance the amount paid with interest. OPs neither execute the sale deeds nor refunded the amount to each of the complainants. Hence there is a continuous cause of action. Be that as may be, as per 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.
13. 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.”
As per the above citation referred supra and the facts of the case the complaint is within the limitation period as per the sec.24 (A) of the C.P Act, 1986.
14. 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.
15. 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.887/2018, 888/2018& 889/2018 are filed by the complainants U/s.12 of the Consumer Protection Act, 1986 are allowed in part.
The OPs in complaint No.887/2018 are directed to refund a sum of Rs.2,23,200/- (Two Lakhs Twenty Three Thousand To Hundred Only) to the complainant together with interest @ 10% p.a from the date of receipt 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.888/2018 are directed to refund a sum of Rs.2,50,000/- (Two Lakhs Fifty Thousand Only) to the complainant together with interest @ 10% p.a from the date of receipt 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.889/2018 are directed to refund a sum of Rs.2,50,000/- (Two Lakhs Fifty Thousand Only) to the complainant together with interest @ 10% p.a from the date of receipt 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.887/2018 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 27thday of January 2020)
(ROOPA N.R) (PRATHIBHA R.K)
MEMBER PRESIDENT
Witnesses examined on behalf of the complainants by way of affidavit:
1) | Mrs.Nagarathnamma, Complaint No.887/2018. |
2) | Mrs.Nagarathnamma, Complaint No.888/2018. |
3) | Mrs.Nagarathnamma, Complaint No.889/2018. |
Copies of documents produced on behalf of complainants:
Complaint No.887/2018.
Ex-A1 | Copy of special power of attorney. |
Ex-A2 | Copy of booking form of Padmaja Kishore. |
Ex-A3 to A6 | Copy of payments receipts of Padmaja Kishore |
Ex-A7 | Copy of layout plan |
Ex-A8 | Copy of agreement for sale in favour of Padmaja Kishore. |
Ex-A9 to A-12 | Copy of request for refund letters. |
Ex-A13 | Copy of legal notice with acknowledgment. |
Ex-A14 | Postal acknowledgment. |
Copies of documents produced on behalf of complainants:
Complaint No.888/2018.
Ex-A1 | Copy of special power of attorney. |
Ex-A2 | Copy of booking form of K.P Tejashwini. |
Ex-A3 & 4 | Copy of payments receipts of K.P Tejasshwini |
Ex-A5 | Copy of journal voucher of K.P Tejasshwini |
Ex-A6 | Copy of layout plan |
Ex-A7 | Copy of agreement for sale in favour of K.P Tejasshwini |
Ex-A8 to A11 | Copy of request for refund letters. |
Ex-A12 & 13 | Copy of legal notice with acknowledgment. |
Copies of documents produced on behalf of complainants:
Complaint No.889/2018.
Ex-A1 | Copy of special power of attorney. |
Ex-A2 | Copy of booking form of K.P Shashank. |
Ex-A3 to5 | Copy of payments receipts of K.P Shashank. |
Ex-A6 | Copy of journal voucher of K.P Shashank. |
Ex-A7 | Copy of layout plan |
Ex-A8 | Copy of agreement for sale in favour of K.P Shashank. |
Ex-A9 to A12 | Copy of request for refund letters. |
Ex-A13 & 14 | Copy of legal notice with acknowledgment. |
Witnesses examined on behalf of the OPs by way of affidavit:
Sri.Roopesh Sulegai, who being the Deputy General Manager of OPs.
Documents produced on behalf of Opposite Party:
1) | Copy of authority. |
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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