Karnataka

Bangalore 4th Additional

CC/2506/2017

Dr.Padma Prasad Ayengar, - Complainant(s)

Versus

M/s Transcity Developers, - Opp.Party(s)

07 Sep 2018

ORDER

Complaint filed on: 06.09.2017

                                                      Disposed on: 07.09.2018

 

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        

 

CC.No.2506/2017

DATED THIS THE 7^th SEPTEMBER OF 2018

 

PRESENT

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

	Complainant/s	V/s	Opposite party/s
	Dr.Padma Prasad Ayengar, Aged about 70 years, W/o Dr.Prasad.V., R/at No.224, ‘Gokula”, Kesare 3rd Stage, Opp. R.S. Naidunagar Bus Stand, Mysuru-570 007.   By.Adv.K.N.Krishna Rao		M/s TRANSCITY DEVELOPERS, No.32, 2nd Floor, 13th Cross, (Above Hotel Shanthi Sagar), Sadashivanagar, Bengaluru-560 080. Rep by its Managing Partner, Dr.V.Nandagopal.   By.Adv.M.Mohan Kumar

 

PRESIDENT: SRI.S.L.PATIL

 

1.       The Complainant has filed this complaint as against the Opposite Party directing to refund the entire amount of Rs.3,60,000/- together with interest at 18% p.a. from the date of payment made by the complainant to the OP till the date of refund by them together with compensation causing mental agony to the complainant, costs and expenses and to grant such other reliefs.

 

2.       The brief facts of the case of the complainant are that the Op and its representative have approached the complainant representing that they are developing and forming a residential layout known as TRANS PRAKRUTHI at Malmachanahalli Village and induced the complainant to invest in the said to be developed layout. On basis of the representation made by the OP and believing the same are true, the complainant had agreed to buy and the OP had agreed to sell the converted land bearing Plot No.84, measuring East to West 60 feet and North to South 40 feet, totally measuring 2400 sq.ft. formed in the layout called as “TRANS PRAKRUTHI” situated at Malmachanahalli Village, Jangamkotee Hobli, Siddlagatta Taluk, Chikkaballapur District at the rate of Rs.430/- per sq.ft and entered into an agreement of sale dt.11.12.2014 for a total sale consideration amount of Rs.10,32,000/- inclusive of amenities viz., underground drainage system, water, electricity, club house, swimming pool, park, road with street light and the OP had also agreed to register the sale deed in favour of the complainant in respect of the above said residential site immediately after obtaining approval from the District Town and Country Planning (DTCP). The complainant had paid an advance amount of Rs.3,60,000/- towards part payment of the sale consideration to the OP under the said agreement of sale. Further, the OP agreed to receive the balance sale consideration amount within one month after obtaining approval of layout from the DTCP by them. During the month, 2015, the complainant visited the spot earlier shown by the OP as the ‘Proposed Trans Prakruthi Layout’ but to her dismay she could not find any activity there and even a sign board about the formation of layout by the OP was not available in the said location. On enquiry, the OP again made excuses and assured the complainant that the layout will be formed as assured and the sale deed will be registered in favour of the complainant latest by October 2015.   As the Op had failed and neglected again their promise made in respect of formation of layout, the complainant was constrained to visit their office on 13.2.2017 and on enquiry, the OP had informed the complainant that the formation of said layout has been dropped by them and directed the complainant to buy any other site formed by the OP in some other different location, however, the complainant had intimated the OP that she is not interested in buying any other site apart from the site formed in the layout known as Trans-prakruthi at the location as assured by the OP. Though the Op had agreed to refund the deposited amount to the complainant with interest, they have failed and neglected to repay the said deposited amount to the complainant till date and they are dodging the matter on one or the other pretext for the reasons best known to them in order to make wrongful gain thereby to cause wrongful loss to the complainant. As the promised project has been dropped by the OP, the complainant repeatedly reiterated that she is not interested to buy any other site than the residential layout Trans-prakruthi at the location agreed/promised by them to the complainant. The complainant further submits that though the OP agreed to form the layout as per specifications mentioned in the said agreement of sale dt.11.12.2014 after obtaining the approval of layout from DTCP, they have intentionally failed and neglected to fulfill their promise even after more than two years inspite of repeated reminders, requests and demands made to that effect by the complainant, which is clear deficiency in service by the OP, thus the complainant demanded refund of Rs.3,60,000/- together with interest at the rate of 18% p.a. from the date of payment to till realization. Further submits that failure on the part of the OP in forming residential layout as agreed by them and registering the sale deed of the same in favour of the complainant, amounts to deficiency of service. Since, the OP failed to render service as agreed by them even after lapse of sufficient time, the complainant caused a legal notice dt.1.6.2017, calling upon the OP to refund the entire amount of Rs.3,60,000/- to the complainant together with interest @ 18% p.a. from the date of payment of complainant to till refund. The said notice has been duly served on the OP. Even after service of notice, the OP neither complied the demand made therein nor caused any replied. Since the OP deliberately and intentionally failed render the service as agreed by them even after lapse of sufficient time, they are liable to pay interest at 18% p.a. on the total amount paid by the complainant to the OP from the date of payment till refund together with costs throughout. Further, the OP have resorted to cheat the complainant and committed an offence of criminal breach of trust. Hence, as there is no other alternative, the complainant has approached this Forum. Hence, the complainant submits to allow the complaint.

 

3.       The notice was ordered to the Opposite Party. The Opposite Party did appear and filed their version by denying the contents of the complaint filed by the Complainant.  

 

4.       The sum and substance of the version filed by the OP are that the OP has always maintain best of business policy and has never handed over any kind of non-approved or unlawful layout. Op submits that formation of residential layout has lot of legal and governmental procedure and it take time, which is clearly explained in the very beginning when any customer approaches for making any investment with the OP. Similarly, the complainant was also explained clearly that the formation of layout has lot of governmental procedure and it is time consuming process as same as explained to the complainant, as such complainant cannot make any false accusation of deficiency of service and the term and condition of the agreement is very clear in this regard. The complainant is making false allegation to create a cause of action in order to make profit out of litigation as such the complainant is liable to be rejected on the said ground itself. The Op informed the complainant about the pending process of obtaining DTCP approval of “Trans Prakruthi” in phase manner and requested the complainant to get ready with balance money to get the site registered as soon as the Approval from DTCP is obtained. The approval from the DTCP authorities is made in phase manner. The complainant was assured that the sale deed for plot would be registered after obtaining approval from the DTCP and never represent or inform the cutoff date as claimed by the complainant. It is submitted that the OP has clearly stated that incase the DTCP authorities refuse to grant approval, the complainant can get the refund of money paid along with prevalent bank rate interest. Inspite of knowing the professional conduct and honest business practice the complainant has approached this Court without approaching the OP and informing any kind of grievance. The OP has never refused to repay his advance at any point of time. The complainant always had an option to seek for refund of the money from the Op has directly approached this Court seeking to make unlawful gain through litigation. The complainant having violated the agreed terms and condition as per the agreement for sale cannot come and claim any relief before this Court. The complainant does not and could not honour his commitment, is trying to approach this Court in order to create pressure on the OP to make financial gain at the cost of the OP.  On these grounds and other grounds prays for dismissal of the complaint.

 

5. The Complainant to substantiate her case, filed her affidavit evidence and produced documents. The OP though did appear and filed version, did not choose to file the affidavit. The Complainant has filed their written arguments, but not the OP. Heard the learned counsel for the complainant.                                                                                                                                                                                                                                                                                                                                                                                             

           

6. The points that arise for our consideration are:

1) Whether the Complainant proves the deficiency in service on

              the part of the OPs, if so, whether she is entitled for the relief

              sought for?

          2) What Order?

                  

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

 

Point No.1: Affirmative 

Point No.2: As per the final order for the following

REASONS

 

8. POINT NO.1 :   We have briefly stated the contents of the complaint as well as the version of the Opposite Party. It is not in dispute that the complainant had agreed to buy the said flat by the OP formed in the layout as “TRANS PRAKRUTHI” at the rate of 430/- per sq.ft. and entered into an agreement of sale dt.11.12.2014 for a total sale consideration amount of Rs.10,32,000/-. In this context, she paid an advance amount of Rs.3,60,000/-.   During the month, 2015, she visited the spot earlier shown by the OP as the ‘Proposed Trans Prakruthi Layout’ but to her dismay she could not find any activity there and even a sign board about the formation of layout by the OP was not available in the said location. On enquiry, the OP again made excuses and assured the complainant that the layout will be formed as assured and the sale deed will be registered in favour of the complainant latest by October 2015.   The said promise was not fulfilled by the OP. Hence, the complainant was constrained to visit their office on 13.2.2017 and on enquiry, the OP had informed the complainant that the formation of said layout has been dropped by them and directed the complainant to buy any other site formed by the OP in some other different location, for which, the complainant has not shown any interest in buying any other site apart from the site formed in the layout known as Trans-prakruthi. Hence, there is a failure on the part of the OP in forming residential layout as agreed by them and registering the sale deed. In this context, she had issued legal notice, but no useful purpose will be served. Hence, she sought for an amount of Rs.3,60,000/-.

 

9.       We have gone through the contents of the agreement of sale dt.11.12.2014 entered into by the complainant with the OP wherein it has specifically stated that the said flat has been agreed to purchase by the complainant for a total sale consideration of Rs.10,32,000/- out of which she had paid an advance amount of Rs.10,000/- and Rs.3,50,000/- by way of credit card and by way of cheque respectively. This fact is not denied by the OP. As per document No.2 produced by the complainant is the letter addressed by the OP to the complainant stating that the said project has been dropped and they have few more project in the alternate project whichever the complainant may choose for the same price, but the complainant was not ready to opt for the site other than the site as stated in the complaint.

 

10.     When the project is not commenced and the hard earned money of the complainant is lying with the OP, under such circumstances, the complainant is entitled for the entire amount of Rs.3,60,000/- with interest at 10% in the form of compensation with cost of litigation of Rs.5,000/- in the light of the decision reported in 2018 (3) CPR 402 (NC) in the case of Shrihari Gokhale and Anr. V/s Marvel Omega Builders Pvt.Ltd., and Anr., wherein it is held as hereunder:

Consumer Protection Act, 1986-Section-21-Real Estate-Booking of residential Villa in a project-Denial of possession despite substantial payment-Complainants are not willing to wait any more considering abnormal delay of more than three years on part of opposite party not performing its contractual obligations and want refund of entire amount paid by them along with compensation-complainants are entitled to refund of entire amount paid by them to OP- Ops shall refund entire principal amount to complainants along with compensation in form of 10% simple interest and cost of Rs.25,000/-.

 

Hence, the complainant is entitled for the relief sought for. Accordingly, we answered point No.1 in the affirmative. 

 

11.     POINT NO.2: In the result, we pass the following:

 

ORDER

 

The complaint filed by the Complainant is allowed. The Opposite Party is directed to refund an amount of Rs.3,60,000/- to the Complainant with interest at 10% p.a. by way of compensation from the date of periodical payment to till its realization.  Further, the Opposite Party is directed to pay an amount of Rs.5,000/- being the cost of the litigation.

The Opposite Party is directed to comply this order within 6 weeks from the receipt of this Order. Failing which, the Complainant is at liberty to take proper steps as per law.

Supply free copy of this order to both the parties.

           (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the open Forum on 7^th September 2018).

(ROOPA.N.R)     MEMBER

(S.L.PATIL)     PRESIDENT

 

 

 

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Dr.Padma Prasad Ayengar., who being complainant was examined. 

Copies of Documents produced on behalf of Complainant/s:

 

Doc-1	Agreement of sale d. 11.12.2014 entered between the complainant and OP
Doc-2	Letter dt.13.2.2017 by the OP
Doc-3	Legal notice dt.20.4.2017
Doc-4	RPAD postal acknowledgement

 

 

 

 

 

 

 

 

(ROOPA.N.R)       MEMBER

(S.L.PATIL)    PRESIDENT