Karnataka

Bangalore 4th Additional

CC/878/2016

Girisha D.V, Nauvata Engineering Pvt. Ltd., - Complainant(s)

Versus

M/s. Maxworth Realty India Limite - Opp.Party(s)

17 May 2018

ORDER

Complaint filed on: 21.06.2016

                                                      Disposed on: 17.05.2018

 

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.878/2016

DATED THIS THE 17^th MAY OF 2018

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

Sri.Girisha.D.V

Aged 30 years

Nauvata Engineering Pvt. ltd.,

#42, 6^th floor, Block A,

Brigade Software park,

27^th cross, BSK 2^nd stage, Bengaluru-70.

 

Inperson     

 

V/s

Opposite party/s

Respondent/s:-

The Chairman &

Managing Director:

 Sri.Kesava.K,

M/s.Maxworth Reality India ltd.,

No.12/2, KMP House,

Yamuna Bai Road, Madhavanagar,

Bengaluru-01.

 

By Adv.Sri.Praveen.B.R

 

 

 

 

PRESIDENT: SRI.S.L.PATIL

 

 

            This complaint is filed by the Complainant against the Opposite party (herein after referred as Op) seeking issuance of direction to pay cost of Rs.10,76,500/- and compensation of Rs.4,30,600/-. 

 

          2. The brief facts of the case of the Complainant are that, in T.V.Program it was told that site buyers has to pay only 50% and get the site registration done and remaining 50% can be paid in 2 years installments without any interest. Hence, he visited many projects of company and he liked Max Residency Phase – III layout. The Complainant further submits that, during site visit, developer showed many vacant sites including 1200 sq.ft. He told he will pay 50% and remaining 50% he will pay in 2 year installment as per their advertisement. But Op did not agree for that and told this option is for other layouts and not for Max Residency Phase – III layout. Finally Op agreed to give 8 months time for 20-25% payment. He collected site documents of one of the 1200 sq.ft area site and gave to lawyer for legal opinion. Lawyer took 2-3 weeks for legal opinion and told most of the documents are OK but except approved layout plan along with some other documents. When he asked Op about approved layout plan, they told Max Residency Phase I & II layout plans are already approved by BIAAPA and Phase III also developed as per BIAAPA norms and will get the BIAAPA approval at the earliest. Since Max Residency phase I & II layout plans were already approved by BIAAPA, he trusted the Op and told the same to lawyer and lawyer advised him to include the “developer commitment regarding layout plan approval by BIAAPA” in the sale deed. But Op did not agree for that and told sale deed will be in company’s standard format, they cannot change, but if he want they can give in company letter head but till today they did not do so. The Complainant further submits that, after some days, when he called Op, they told there are no vacant sites of 1200 sq.ft area and gave site no.169 which was 1393 sq.ft area. One day one of the Op representative called him and said there is one corner site no.165 and there is no extra charge for the corner site. Since the area of the site no.165 is 1340 sq.ft which was less than the earlier booked site no.169. He agreed to buy site no.165 (hereinafter referred as the said site). Site registration was done on 29.09.14 with 4 numbers of post dated cheques of Rs.80,500/- each. Since full payment was not done at the time of site registration, original sale deed was retained by Op and only photocopy of the sale deed was given to him.  After finishing registration on 29.09.14, he asked Op to visit the site since he was not seen the site no.165 at site. He was shocked at site after seeking site no.165 because there was only approx.50% of the site and remaining was kaaluve. As per the layout plan, kaaluve was after his site no.165 but as per site condition, kaaluve was passing in middle of the site. When he asked the Op regarding the mismatch of site conditions and layout plan, they told they will fill and divert the kaaluve. He said that encroachment or diversion of any kaaluve is illegal. But Op said that layout plan was developed based village map and as per village map, kaaluve was outside of site no.165. Because of water flow, kaaluve was encroached in to the site over a time. The Complainant further submits that, now due to personal problems, he want to resale the property but since the layout plan is not yet approved and development is incomplete, he is not able to resale the property. Basic amenities like electricity, road, water etc., are not provided yet. Quality of construction is very bad. Further, Op has not taken any action regarding layout plan approval by BIAAPA and layout development ever after many follow-ups. Hence prays to allow the complaint.

 

3. On receipt of the notice, Op did appear and filed version.  The sum and substance of the version of the Op are that, Complainant is not a consumer as per Sec.2(1)d(ii) of CP Act and it is very clear that service availed for his livelihood for personal use only. Here Complainant has booked site for commercial purpose. Complainant himself admitted in his complaint that, he wants to resale, consumer act clearly says that, any service availed for commercial purpose or resale he is excluded from consumer. Hence Complainant is not a consumer and complaint is not maintainable. Op admitted that he has developed the lands and formed a residential layout called Max-Residency III and Complainant has booked plot no.165. The total cost of the plot is Rs.10,31,800/-. As per booking form terms & conditions, has to pay 30% of the total sale consideration. Hence Op had executed the sale deed to the Complainant on 29.09.14. As per the commitment, Complainant has to pay the monthly instalment. But he default in making payments when Op as per the EMI scheme demanded the last instalment. The Op further submits that, Complainant after visiting the layout and satisfied about development, he voluntarily booked corner site by cancelling the previous booking site no.169 giving shifting letter to Op. Now making allegation not just and proper. Op has already executed the registered sale deed to the Complainant and the right has been transferred. Now he cannot seek relief for refund without cancellation of sale deed dtd.29.09.14 and this forum has no jurisdiction to cancel the sale deed and refund the amount. In the registered sale deed, Op nowhere assured about they shall provide BIAPPA approved layout plan for site and this layout comes under BIAPPA, this site and layout comes under the Gramapanchayat limit not BIAPPA. Hence Op issued Gramapanchayat Katha in respect of site no.165 and property ID number is also given. The Op further submits that, it is very clear showing in the layout sketch produced by the Complainant there is a kaluve passes away from the site no.165 not middle. There is no headship to the Complainant to construct the home and live there. But Complainant wants to re-sale the site for commercial purpose not for personal use, hence Complainant is not a consumer. Further the Complainant has not given legal notice to Op about his grievances and all of a sudden filed a case is not maintainable under law and no cause of action to this complaint.  It is mandatory to issue legal notice before filing the complaint. Hence on these grounds and other grounds prays for dismissal of the complaint.

         

          4. The Complainant to substantiate his case filed affidavit evidence and got marked the documents as Ex-A1 to A12. The Deputy General Manager of Op filed affidavit evidence and produced 4 documents. Both filed written arguments. Heard both side.

  

 

 

 

5. The points that arise for our consideration are:

1. Whether the Complainant is a consumer comes under the definition of Sec.2(1)d of CP Act, if so, whether he is entitled for the relief sought for ?    
2. What order ?

                   

           

 

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

 

Point no.1: In the Negative.  

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

 

REASONS

 

          7. Point no.1:  We have briefly stated the contents of the complaint as well as the version filed by the Op. In the instant complaint, Complainant has sought for multiple relief under different heads for an amount of Rs.15,07,100/-. The undisputed facts which reveal that, the Complainant has already got the site registration on 29.09.14. It is settled principle of law that, once the sale deed gets registered, unless and until the said sale deed is set aside, the consideration amount cannot be refundable. Moreover, the procedure being adopted by this forum is summary in nature. To set aside the sale deed, it requires full-fledged trail before the competent civil court having got jurisdiction.

 

          8. The Op has taken specific contention that, Complainant intends to re-sale the said site, which can be seen on going through the para 21 of the complaint. For better appreciation, we would like to extract the said para, which reads thus:

21. Now due to personal problems, I want to resale the property but since the layout plan is not yet approved and development is incomplete, I am not able to resale the property.

 

9. If the entire contents of the para 21 is strictly construed, the Complainant is not willing to construct any kind of building. But his sole intention is to re-sale. When such being the fact, the complaint filed by the Complainant is not comes within the purview of this forum also in the light of the following decisions cited by the learned counsel for the Op:

1) I (2016) CPJ 219 (NC)

2) II (2016) CPJ 626 (NC)

3) I (2016) CPJ 377 (NC)

4) IV (2013) CPJ 221 (NC)

5) III (2012) CPJ 315 (NC)

6) CC.no.6/2014 of Hon’ble National Commission, dtd.03.02.14

7) CC.no.143/2013 of Hon’ble National Commission,

    dtd.05.03.14

 

10. The sum and substance of the said decisions are, if the sites/flats being purchased or booked for the purpose of investment, it is nothing but the commercial transaction. Hence, the Complainant cannot labelled as a consumer. The only option left open to the Complainant is to get redress his remedy by way of filing the suit before the competent court of law having got jurisdiction. In this view of the matter, we come to the conclusion that, complaint filed by the Complainant is liable to be dismissed. Accordingly we answered the point no.1 in the negative.

 

11. Point no.2: In the result, we passed the following:

 

ORDER

 

          The complaint filed by the Complainant is dismissed.

 

2. Anyhow, an option is left open to the Complainant to get redress his remedy before the competent court of law having got jurisdiction to try the same.

 

          3. Looking to the circumstances of the case, we direct both the parties to bear their own cost.   

 

          Supply free copy of this order to both the parties.

 

          (Dictated to the Stenographer in the open forum and pronounced on 17^th May 2018).

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT

                                                                        

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

 

Sri.Girisha.D.V, who being the complainant was examined. 

 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-A1	Amount paid receipts
Ex-A2	Post dated cheques
Ex-A3	Layout plan
Ex-A4	Site photos along with site snap shot from google map
Ex-A5	Email – refund
Ex-A6	Email confirmation – layout plan approval by BIAAPA
Ex-A7	Email - layout plan approval by BIAAPA
Ex-A8	Email- stop cheque payment
Ex-A9	Advertisement
Ex-A10	Commitment regarding amenities/facilities
Ex-A11 & A12	Layout plan approval by BIAPPA

 

2. Witness examined on behalf of the Opposite party/s Respondent/s by way of affidavit:

 

Sri.Roopesh Sulegai, who being the Deputy General Manager of Op was examined.

 

Copies of Documents produced on behalf of Opposite party/s

 

Doc.no.1	Letter dtd.26.09.14
Doc.no.2	Sale deed dtd.29.09.14
Doc.no.3	Katha of site no.165
Doc.no.4	Layout map

 

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT