BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, MYSORE-570023

CONSUMER COMPLAINT NO.167/2020

DATED ON THIS THE 13^th September 2022

      Present:   1) Sri. B.Narayanappa

M.A., LL.B., - PRESIDENT   

                     2) Smt.Lalitha.M.K.,

M.A., B.A.L., LL.B., - MEMBER  

                        3) Sri Maruthi Vaddar,

                                                B.A., LLB (Special)  - MEMBER

Sri B.NARAYANAPPA,

PRESIDENT

1.       The complainant Smt.K.Indira Devi resident of Mysuru represented by her GPA holder Sri Renuka Prasad.M.V., has filed this complaint against the OP – M/s Transcity Developers, Bengaluru represented by its Managing Partner Sri Ravi, praying to direct the OP to pay a sum of Rs.10,30,160/- with current interest at 24% p.a. from the date of the complaint till realization and to pay Rs.30,000/- towards mental agony and harassment caused to complainant and such other reliefs as this Commission deems fit to grant.     
2.       The brief facts are that:-

The OP is a developer forming layout and sell the sites to public under the name and style as “M/s Transcity Developers” and the OP has formed a layout known as Orchied Paradise New Phase I Extension, Malemachanahalli Village, Jangamakote Hobli, Shidlaghatta Taluk, Chikkaballapur District.On 23.05.2013 the OP entered into an agreement of sale with complainant agreeing to sell two plots measuring 30 x 40 ft. each by fixing the rate of Rs.450/- per sq.ft. and the sale consideration also fixed at Rs.10,80,000/- and the OP had received Rs.3,78,000/- from the complainant as advance on various dates as mentioned in para 4 of the complaint. But, the OP has not handover the sites to complainant as agreed by it.However, the complainant visited the OP office and requested to hand over the sites, but the OP told the complainant to pay remaining balance sale consideration of Rs.7,02,000/- and shown the different sites other than the agreement schedule property.As per the terms and conditions of the agreement it is mentioned that the purchaser shall pay the balance sale consideration amount of Rs.7,02,000/- within one month from the date of obtaining the approval from District Town and Country Planning (DTCP).In case of land has not been approved by DTCP, the initial sale consideration will be refunded with existing bank rate of interest.On 23.10.2019, the complainant issued a letter to OP and the same was served upon it, but, no response from the OP side.Therefore, on 18.12.2019 a legal notice was issued to OP which was served on it, but OP given an untenable reply.Therefore, it is alleged that the OP has violated the terms and conditions of the agreement of sale which amounts to practicing of unfair trade practice and deficiency in service.Hence, the complainant requested the OP to refund Rs.3,78,000/-with interest of Rs.6,50,160/- from 23.05.2013 to 31.07.2020 at the rate of 2% per month and Rs.2,000/- as legal notice charges totally Rs.10,30,160/-.Hence, this complaint.

3.       After registration of this complaint, notice was ordered to be issued to OP.  In response to notice, OP appeared before this Commission and filed version contending that complaint is false, vexatious, lacks merit and therefore, same is liable to be dismissed.  Further OP denied the averments made in the complaint that as per agreement dated 23.05.2013, the OP failed to deliver two sites within time as agreed in the agreement and contended that the schedule property was ready for registration in favour of the complainant, but complainant has sought for one year time and postpone the date of registration to pay the balance sale consideration.  The DTCP approval was granted on 06.07.2013 and 18.09.2013 and admitted that both parties have entered into agreement of sale dated 23.05.2013 but, contended that the present complaint was filed in the year 2020 after delay of more than 7 years.  Hence, the complaint is not maintainable.  The schedule property situated at Chikkaballapura District and the OP doing his business at Bengaluru and agreement was entered into between both parties at Bengaluru.  Therefore, this Commission has no jurisdiction to try the complaint. As per the agreement dated 23.05.2013, it is very clear that if OP fails to get the DTCP approval then it would be liable to refund the advance amount.  But, OP obtained DTCP approval on 06.07.2013 and 18.09.2013, but the complainant failed to pay the balance sale consideration and pleaded that there are some financial issues in their family.  Therefore, she could not complete the said transaction.  In view of the complainant failed to pay the balance sale consideration, the OP was not able to execute registered sale deed in the name of the complainant in respect of two sites.  Instead of getting sites registered in the name of the complainant, the complainant got issued legal notice to OP requesting to refund the advance amount for which results in causing irreparable loss and injury to the opposite party.  The complaint was filed making reckless and baseless allegations and there is no deficiency in service on the part of the OP.  For all these reasons, OP prays to dismiss the complaint.        
4.        The GPA holder of the complainant has filed affidavit on behalf of complainant by way of examination in chief and the same was taken as P.W.1 and got marked Ex.P.1 to Ex.P.11.      On the other hand, OP has filed his affidavit by way of examination in chief and the same was taken as R.W.1 and got marked Ex.R.1 to Ex.R.7.
5.      We have heard the arguments of both sides.  The complainant counsel has also filed the written arguments. 
6.        The points that would arise for our consideration are as under

1. Whether the complainant proves that the alleged deficiency in service on the part of the opposite parties and thereby she is entitled to the reliefs as sought for?
2.  What order?

7.       Our findings on the aforesaid points are as follows:

      Point No.1 :- Partly in the affirmative

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

:: R E A S O N S ::

8.          Point No.1:- It is not in dispute that  the OP is a developer forming layout to sell the sites to public in the name and style as “M/s Transcity Developers” and formed layout known as Orchied Paradise, at Malemachanahalli Village, Jangamakote Hobli, Shidlaghatta Taluk, Chikkaballapur District.  Further it is not in dispute that the complainant with an intention to purchase two sites measuring 30 x 40 ft. each entered into agreement of sale with OP dated 23.05.2013 and it was agreed that the rate of per sq. ft. was for Rs.450/- totally sale consideration was fixed at Rs.10,80,000/- and the complainant had paid advance amount of Rs.3,78,000/- and got marked the Ex.P.2 the agreement of sale dated 23.05.2013 which clearly reflects that both parties have entered into agreement of sale and the complainant had paid advance amount of Rs.3,78,000/- and sale price was fixed at Rs.10,80,000/- for two sites each measuring 30 x 40 ft. and it was also agreed that the purchaser /complainant shall pay the balance sale consideration of Rs.7,02,000/- within one month from the date of obtaining approval from District Town and Country Planning (DTCP) and it is further contention of the complainant that the Op does not come forward to execute the registered sale deed in respect of two sites by receiving balance sale consideration amount of Rs.7,02,000/- and not handed over the sites to her.  Whereas it is the counter allegation of the Op that DTCP approval was granted on 06.07.2013 and 18.09.2013 and OP was ready to execute the sale deed in favour of the complainant in respect of two sites each measuring 30 x 40 ft., but the complainant was not ready to get execution of sale deed and pleaded that she faces some financial issue in their family.  Therefore, she could not arrange the balance sale consideration amount.  But, the complainant has denied the aforesaid contention of the OP, saying that the OP does not come forward to execute the sale deed by receiving balance sale consideration.  Therefore, the complainant contends that the legal notice dated 18.12.2019 was issued to OP as per Ex.P.7 demanding refund of Rs.3,78,000/-.  From Ex.P.7, the legal notice it is crystal clear that the complainant by issuing legal notice requested the OP to refund the advance amount of Rs.3,78,000/-.  The OP issued reply notice as per Ex.P.10 stating that the OP was ready to execute registered sale deed in favour of the complainant.  But, the complainant herself does not turn up, instead requested to cancel the two plots and to pay back the advance amount.  Under such circumstances, doubt arises as to whether the contention of complainant that she was ready to get sale deed registered in her name by paying balance sale consideration amount is to be believed or the contention of the OP that it was ready to execute the registered sale deed, but complainant was not ready to get sale deed registered in her name by paying balance sale consideration is to be believed? The OP got marked Ex.R.1 the conversion order passed by the learned D.C., Chikkaballapura converting the land survey No.56/1 measuring 34 guntas of Bhaktara Halli Village, Jangamakote Hobli, Shidlaghatta Taluk into non-agricultural purpose and also produced conversion order issued by learned D.C., Chikkaballapura dated 23.09.2011 converting the land Survey No.57/09 measuring 0.21 guntas of Bhaktara Halli Village, Jangamakote Hobli, Shidlaghatta Taluk into non-agricultural purpose and also produced conversion order dated 23.09.2011 issued by learned D.C., Chikkaballapura converting the land survey No.57/10 measuring 1.33 acres of Bhaktara Halli Village, Jangamakote Hobli, Shidlaghatta Taluk into non-agricultural purpose and also produced conversion order dated 23.09.2011 issued by learned D.C., Chikkaballapura converting the land survey No.57/13 measuring 1.03 acres of Bhaktara Halli Village, Jangamakote Hobli, Shidlaghatta Taluk into non-agricultural purpose and also produced two more conversion order dated 07.09.2012 and 12.10.2012 issued by learned D.C. Chikkaballapura converting the land survey No.55/1 measuring 1.03 acres and 59/1 measuring 1.06 and ½ acre situated at Bhaktara Halli Village, Jangamakote Hobli, Shidlaghatta Taluk into non-agricultural purpose along with sketch of the said converted lands and also produced order passed by DTCP, Chikkaballapura approving the layout formed by the OP and release of sites.  From the material documents placed on record by the OP, it is crystal clear that the OP got converted the agricultural lands into non-agricultural purpose from learned D.C., Chikkaballapura and also obtained approval from DTCP, Chikkaballapura releasing the sites dated 06.07.2013 and 18.09.2013.  So it appears that even though the DTCP, Chikkaballapura had approved the layout of the OP and released the sites in the year 2013 itself and the OP was ready to execute the sale deed in favour of the complainant, but as per the contention of the OP, the complainant herself does not come forward to get the sale deed registered in her name in respect of two sites measuring 30 x 40 ft. each.  Therefore, the OP could not able to execute the sale deed in favour of the complainant.  Hence, contends that there is no deficiency in service on the part of OP.  But, as we have already stated above, as per the contention of the complainant that she was ever ready to get the sale deed executed in her name in respect of two sites each measuring 30 x 40 ft. by paying balance sale consideration, but the OP delayed the execution of the sale deed by stating one or the other reasons despite of issuance of legal notice dated 18.12.2019, the OP does not come forward to execute the sale deed in her favour, therefore, alleged deficiency in service on the part of OP.  Considering the rival contention of both parties, we are of the opinion that even though the OP had received substantial amount of Rs.3,78,000/- from the complainant, it has failed to execute the sale deed in favour of the complainant in respect of two sites measuring 30 x 40 ft each not refund the advance amount.  Therefore, having disgusted with attitude of the OP, the complainant by issuing Ex.P.7 legal notice dated 18.12.2019 requested the OP to refund advance amount of Rs.3,78,000/-, in spite of it, OP neither refund the advance amount nor executed the sale deed in favour of the complainant in respect of two sites measuring 30 x 40 ft. each. The non refund of the advance amount of Rs.3,78,000/- paid by the complainant is nothing but the deficiency in service on the part of OP.  Therefore, we are of the considered view that the OP is liable to refund Rs.3,78,000/- to the complainant with interest. Hence, we answer point No.1 partly in the affirmative.
9.       Point No.2:- For the aforesaid reasons, we proceed to pass the following

:: ORDER ::

1. The complaint of the complainant is hereby allowed in part.
2. The opposite party is hereby directed to refund advance amount of Rs.3,78,000/- to the complainant with interest at 10% p.a. from the date of its payment till realization within 3 months from the date of this order. 
3. Further, opposite party is hereby directed to pay compensation of Rs.50,000/- towards mental agony and deficiency in service caused to complainant and Rs.5,000/- towards cost of the litigation within 3 months from the date of this order, failing which compensation of Rs.50,000/- + cost of litigation of Rs.5,000/- = 55,000/- shall carry interest at 10% p.a till payment.
4. The complainant is at liberty to take action against the opposite party under Section 72 of the C.P.Act, 2019 for non-compliance of this order.
5. Furnish the copy of order to both parties at free of cost.

(Dictated to the Stenographer transcribed, typed by her, corrected by us and then pronounced in open Commission on this the 13^th September, 2022)