Karnataka

Bangalore 4th Additional

CC/15/1066

Mrs. V. Varalaxmi - Complainant(s)

Versus

M/s. Transcity Developers and Others - Opp.Party(s)

20 Feb 2018

ORDER

Complaint filed on: 05.06.2015

                                                      Disposed on: 20.02.2018

 

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.1066/2015

DATED THIS THE 20^th FEBRUARY OF 2018

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SRI.D.SURESH, MEMBER

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

Mrs.V.Varalaxmi

W/o Manjunath K,

aged about 34 years,

R/at no.3254/B, 4^th cross,

C Block, Gayathri nagar, Bengaluru-21.

 

By Adv.Sri.Ramachandra G

Bhat & Associates     

 

V/s

Opposite party/s

Respondent/s:-

 

1. Trancity Developers,

Corporate Office at no.32,

2^nd floor, Bashyam circle

(above hotel Shanthi Sagar), Sadashivanagar,

Bengaluru-80.

Rep. by its Managing Partner Sri.V.N.Nandagopal

 

2. Sri.V.N.Nandagopal,

The Managing Partner,

M/s. Trancity Developers,

Corporate Office at no.32,

2^nd floor, Bashyam circle

(above hotel Shanthi Sagar), Sadashivanagar,

Bengaluru-80.

 

By Adv.Sri.H.S.Girish Reddy

 

3. Dr.S.Ravi

S/o Srinivasaiah,

Aged about 45 years,

Partner,

M/s. Trancity Developers,

Corporate Office at no.32,

2^nd floor, Bashyam circle

(above hotel Shanthi Sagar), Sadashivanagar,

Bengaluru-80.

 

Ex-parte

 

 

PRESIDENT: SRI.S.L.PATIL

 

 

            This complaint is filed by the Complainant against the Opposite party no.1, 2 & 3 (herein after referred as Op.no.1, 2 & 3 or Ops) seeking issuance of direction to refund a sum of Rs.4,50,000/- along with compensation of Rs.1 lakh with interest at 24% p.a. from 31.01.13 till realization.                                                                                                   

 

          2. The brief facts of the case of the Complainant are that, the Ops gave an advertisement that they have developed a residential layout by name ‘Aerolights county’ (hereinafter referred as the said layout) stating that it is one of the popular residential/plot development in Devanahalli. It is one of the project of Trancity Developer and the project is upcoming with plot area ranging from 1200 sqft. to 2400 sqft under a consolidated block by name Aerolight county, comprising of sy.no.s 108/1, 108/2 & 108/3 of Yennangoor village, Jangamakote hobli, Sidlagatta taluk, Chikkaballapura District, it is stated that the Ops are absolute owners of the layout, having purchased the same through a sale deed dtd.28.09.10. It is the case of the Complainant that, her husband is working in a private company. The Complainant and her husband wanted to construct their own house. Bonafidely believing the advertisement in the website, they approached the Ops and expressed their willingness to buy a plot in the said layout developed by the Ops. The Complainant further submits that, Ops gave a free inspection of the layout to them on 13.01.13 and the Complainant found that the formation of the layout had just began and roads were not formed and only plot numbers were given. When questioned, the Ops prevailed upon the Complainant and her husband that the rest of the work will start soon, at any rate the layout will be completed within a short time frame of six months. The Ops lured and assured the Complainant that they would provide round the clock security system, exclusive overhead tank, borewells for water supply, electricity with street lights, avenue planation and asphalted tar roads, vide main roads, tree lined park, runway throughout the main road, jogging track, park and landscaped garden, fountains and water bodies underground box type drainage system and sewerage connection, children’s play area, and it is prevailed upon by them that the plots are ready for immediate registration. The Complainant further submits that, Ops offered plot no.11 to the Complainant on a sale consideration of Rs.4,50,000/- to be paid in three instalments. Bonafidely believing the facilities offered by the Ops and also with a fond hope of building her dream home, the Complainant has agreed to buy the above plot bearing no.11, measuring an area of 1200 sqft., in the said layout formed in sy.no.108/1, for the aforesaid consideration of Rs.4,50,000/- and the Ops represented by Op.no.2 have executed an agreement of sale dtd.31.01.13. The Complainant further submits that as per the agreement they paid Rs.4,50,000/- for which Ops have issued receipts for having received the sale consideration in full and final settlement. As per the agreement, upon receipt of the full sale consideration, sale deed should be executed. The entire sale consideration is received by the Ops on 08.09.13 and they should have executed the sale deed on 09.09.13 itself, but one or the other pretext they did not execute the sale deed. Hence, on 05.09.14, the Complainant issued a legal notice for which Ops neither replied nor refunded the money received from the Complainant. The Complainant further submits that, on 28.02.15, she and her husband visited the said layout, where the plot agreed to be sold to them is situated. They were really shocked to note even after the elapse of almost 2 years, the layout is totally abandoned by the Ops and it was in the same unfinished condition, which the Complainant saw for the first time. Hence, on 18.03.15, the Complainant issued demand notice to refund the sum paid by him with interest. Even after receipt of the demand notice they have not taken steps to refund the amount as demanded. Hence on these grounds and other grounds prays for allowing the complaint.  

 

3. On receipt of the notice, Op.no.3 did not appear before this forum, hence placed ex-parte. Op.no.1 & 2 did appear through their counsel and filed version denying all the allegations made in the complaint. The Op further submits that, complaint filed by the Complainant is not maintainable as it is barred by time. The Ops further submit that the Complainant seeking compensation on account of basic amenities which have to provide till date by the company. The claim of the Complainant is based on sale agreement dtd.31.01.13 entered into between herself and the Ops. In view of the said agreement, the Complainant was agreed to purchase the plot no.11. The Ops further submit that, as per these facts it clearly shows that the agreement dtd.31.01.13 was not acted upon between the parties to the said agreement. Hence the liability due to the said agreement has no effect and the said agreement is automatically cancelled. The Op further submits that, the claim of the Complainant is based on the sale agreement and it claiming the amount that she has alleged to be paid towards the cost and registration of plot no.11. It clearly shows that the claim of the Complainant is based on the sale agreement on the ground of breach of contract. The duty, liability and effect of sale agreement which is alleged to be breach of contract between the parties is triable by the Civil court not by this forum. Hence on these grounds and other grounds prays for dismissal of the complaint.

         

          4. To substantiate the case, Special Power of Attorney holder of the Complainant filed affidavit evidence and got marked the documents Ex-A1 to A13 and also filed written arguments. Op.no.1 & 2 did not file affidavit evidence & written arguments.  Heard.   

  

5. The points that arise for our consideration are:

1. Is there any cause of action to file this                 complaint ?
2. Whether complaint filed by the Complainant is barred by time ?
3. Whether the Complainant proves deficiency of service on the part of Ops, if so whether she is entitled for the relief sought for ?  
4. What order ?

                   

           

 

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

 

Point no.1: In the Affirmative  

Point no.2: In the Negative

Point no.3: In the Affirmative

Point no.4: As per the final order for the following

 

REASONS

 

          7. Point no.1 & 2:  Since these points are interconnected, hence we have taken these 2 points together for our discussion just to avoid the repetition of the facts.

 

          8. Ongoing through the available materials on record, it is noticed that, an application dtd.06.02.16 filed by the Ops under Sec.26 read with Sec.24A of the CP Act is pending. Order sheet dtd.28.04.16 goes to show that the said application will be consider on main and posted the matter for arguments.

 

          9. Para 8 of the version filed by the Ops goes to show that as per Sec.24A of the CP Act, limitation for filing the complaint is two years from the date of cause of action. The claim of the Complainant in the above complaint is based on sale agreement dtd.31.01.13. Hence the cause of action for filing the complaint should be within two years from 31.01.13. So the complaint is after lapse of time, hence the complaint filed by the Complainant is barred by time as per Sec.24A of CP Act. To falsify the contention taken by the Ops, learned counsel for the Complainant submits that in such type of cases, cause of action continues till handing over the possession and registration of sale deed. The said submission of the Complainant is not supported by any of the authorities. Anyhow, this forum has come across with two decisions on this point which will throw the light on the contention taken by the Complainant which are as follows:

(1) I (2015) CPJ 567 (NC) in the case of New Generation Real Estates Pvt. ltd. & Anr. vs. Ramesh Chander Khurana & Ors, wherein at para (ii), 16 & 17 it is held that:

(ii) Limitation – Until or unless sale deed is executed the cause of action continues.

16. This is a settled law that the Complainants have got continuous cause of action till the sale deed is executed. By no stretch of imagination it can be said that the case is barred by time. The State Commission has referred to Lata Construction & Ors., v. Dr.Rameshchandra Ramniklal Shah and Anr., X (1999) SLT 77=III (1999) CPJ 46 (SC)=AIR 1999 SC 380 and Meerut Development authority v. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC) to buttress its judgment.

17. We have come across two latest pronouncements of Law. In case of Bhagyalaxmi Constn., vs. Monoranjan Basak & Ors., Civil Appeal no.28910/2013, wherein the order passed by this Commission that “until or unless sale deed is executed, the cause of action continues”, was upheld by the Apex court. In the another authority passed by his Bench in the case of Raghava Estates ltd., v. Vishnupuram Colony Welfare Association, IV (2012) CPJ 36 (NC), in Revision petition no.3097/2012 decided on 04.09.12, took the similar view. The special Leave to Appeal (civil) no.35805/2012, was dismissed in limine by the Hon’ble Supreme Court.

 

(2) I (2015) CPJ 573 (NC), in the case of Harpreet Singh Kohli & Anr., vs. Nelu Estate and Movers pvt. ltd., & Ors., wherein at para (i) it is held that:

(i) Limitation – continuous cause of action till possession is given and sale deed is executed.  

 

          10. In the instant case, cause of action set out by the Complainant was arisen on 18.03.15 and thereafter when the Ops have not taken steps to refund money and damages claimed in the legal notice for deficiency of service committed by them. In the light of the decisions cited supra, if the cause of action is taken in to consideration from the date of 18.03.15, the complaint filed by the Complainant is well within time. Accordingly we answered the point no.1 in the affirmative and point no.2 in the negative.

 

          11. In view of our findings on point no.1 & 2, application dtd.06.02.16 filed by the Ops under Sec.26 read with Sec.24A of the CP Act liable to be dismissed.

 

12. Point no.3:  The undisputed facts which reveals from the pleadings of the parties goes to show that the Ops have executed the sale agreement on 31.01.13 marked as Ex-A1 in favour of the Complainant and received entire sale consideration amount. But the contention taken by the Ops is that, agreement of sale was not acted upon between the parties to the said agreement. Hence the liability due to the said agreement dtd.31.01.13 has no effect and the said agreement is automatically cancelled. Further contention taken by the Ops is that, the liability and effect of sale agreement dtd.31.01.13 which is alleged to be breach of contract between the parties is triable by the Civil court not by this forum.

 

13. It is also the contention of Ops that as per the sale agreement at para 6.c. it is stated that “The amount once paid to M/s.Trancity Developers will not be refunded at any point of time except as provided elsewhere in this agreement”. Referring to the said clause submits that, complaint filed by the Complainant is not maintainable. In the entire text of the version filed by Ops, only contention taken is that this forum has no jurisdiction to enforce the agreement to sale, but it is the only Civil court which is competent to try and dispose.

 

14. We placed reliance on the contents of the complaint, wherein the Complainant has sought for the refund of an amount paid by her to the extent of Rs.4,50,000/-. As though she is ready and willing to oblige her part of obligations under the agreement, but it is the Ops by one or the other pretest postponed the registration of sale deed. Hence she requests to refund the money. In this context, we are of the opinion that, there is no illegal impediment to file such a complaint before this forum for the recovery of the amount so far paid by the Complainant. To show her bonafide complaints, issued notice to Op with regard to the execution of sale deed. But there was no proper response. There were so many email correspondences between the Complainant and Ops. That on 23.01.14, Marketing Executive of the Ops gave an (SMS) mobile phone message, as under:

 

“Sir I ‘m sorry to tell you that since your plot no’s have not yet registered from a long time, sir as per my M.D. instruction they are preparing notice to you, sir if you are not able to come for registration this month at least clear your balance amount so that latest by February 1^st week you can register, sir if you not this would be your contract breach so your plot no. will be released and your funds would be forfeited sir, then please don’t blame me sir ……. Your Nisha”

 

to which the Complainant has replied and the email communications between the Complainant and Op Executive are stated at para 13 of the complaint which reads thus:

“I never said that I will not do register how many time I asked you provide me the break you and you never given the same and I am very upset about you are response I told that I will do registration my lawyer and I asked you to fix the appointment with you are people and you are not reply for that also so please provide me the break up for registration cost and what is the government value for the site.

 

The Executive replied as follows:-

“Ok tomorrow will do that when you are coming to office please reply your Nisha”

 

Complainant replied again:-

“I am coming on Saturday to your office”

 

The executive replied again as follows:-

“Ok please make sure you are coming along with your cheque book sir I will confirm you the timings.

…..Nisha “

 “Sir, tomorrow please come at 11a.m. sir, your Nisha

 

Complainant replied again:-

Sorry I am not able to come today I will be there tomorrow evening.

 

The executive replied again as follows:-

“Ok your Nisha”

 

Complainant replied again:-

“Still I have not received for revised list of cost for the registration as per my lawyer instruction. I have decided to do the registration on 25.09.14 make sure your authorized person along with necessary document should be there without fail.”

 

15. Further the Complainant has also issued legal notice calling upon the Ops to appear before the Senior Sub-Registrar, Sidlagatta taluk, Chikkaballapura district without fail on 25.09.14 along with necessary original documents required for registration and they were called upon to register the sale deed on 25.09.14. The said notice was duly served on Ops. Accordingly the Complainant was present on 25.09.14 before the Sub-Registrar Sidlagatta taluk up to 5p.m. but nobody appeared. Simultaneously the Complainant also sent SMS to the Ops reads as follows:-

“We have waited up to 5p.m today on 25.09.14 in the office of Sub-Registrar Sidlagatta. None of you at least none from your office came, no courtesy at least inform about your intention it is presumed that you have rejected the demand made in legal notice. We have to proceed to file a criminal case.”

 

16. Inspite of it, there was no proper response. Thereafter the Complainant has no other go except to visit the office of the Ops. Accordingly she visited the Op’s office but none of the Ops were available in the office. The Ops neither reply nor have refunded the money received by the Complainant. This fact is not denied by the Ops in its version. Further it is also the case of the Complainant that on 28.02.15 herself and her husband visited the said layout namely Aerolight County where the plot agreed to be sold to the Complainant is situated. On inspecting the said layout, they were really shocked to note even after the elapse of almost 2 years, the layout is totally abandoned by the Ops and it was in the same unfinished condition. So far, the Ops have never taken any steps to form the road and asphalt the road with tar, no underground drainage is provided, no overhead tank, no bore well is put, no water supply, no electricity connection to the layout, no drainage underground work done and no park area is earmarked. These facts are not specifically denied by the Ops in its version. Under such circumstances, contention taken by the Complainant in this aspect is presumed to be true and correct. With regard to the refund of the said amount so far paid by the Complainant to the tune of Rs.4,50,000/- is concerned, we placed reliance on the latest decisions of the Hon’ble National Commission, where in an observations made therein are applicable to the present case on hand, which is reported in 2018 (1) CPR 248 (NC) in the case of M/s.Silver Line Villas & Apartments Pvt. ltd. and Anr. v. V.V.Nair and Anr., reads thus:

Consumer Protection Act, 1986 – Sections 17, 19 & 21- Real estate – purchase of land – Op failed to execute and register an agreement for sale – there is nothing on record to say that Complainant had made investment for the purpose of earning profit only and that he did not intend using the property for his personal use – failure of appellants/Ops to enter into a formal agreement with Complainant even after deposit of money with them, amounts to deficiency of service in itself – payment of cheques for refund of amount deposited and subsequent bouncing of cheques, also reflects deficiency of service on part of appellants – There is no illegality, irregularity or jurisdictional error in order passed by State Commission by which they have directed appellant to refund balance principal amount deposited by Complainant alongwith reasonable interest – Order passed by State Commission upheld.

 

And also in another case I (2015) CPJ 573 (NC), in the case of Harpreet Singh Kohli & Anr., vs. Nelu Estate and Movers pvt. ltd., & Ors., wherein at para (ii) it is held that:

 

(ii) Consumer Protection Act, 1986 – Sections 2(1)(g), 14(1)(d), 21(a)(i) – Housing – construction and development of property – Joint venture agreement – Non-delivery of possession – deficiency of service – mention of name of Complainants prior to name of partnership firm does not cause any dent on Complainant’s case – Complainants have been asking Ops to return money or to put in possession of flat but their requests fell on deaf ears – Although, it is not possible to hand over flat in favour of Complainants because their father/husband is also involved in construction work of that property, the joint venture agreement clearly shows that construction cannot be done for long time – Ops cannot wriggle out of liability of accepting Rs.10 lakh, for doing nothing – Directed to pay Rs.10 lakh with interest at 9% p.a.

 

17. In the light of the decisions cited supra, we are of the view that there is no laxity on the part of the Complainant to get registered the regular sale deed but it is the Ops by one or the other pretext postponed the registration of the sale deed. When the Complainant and her husband noticed the layout, where the project was going on was found to be totally abandoned. No basic amenities were made available. This attitude of the Ops are appears to be unfair trade practice. Hence they are liable to refund consideration amount of Rs.4,50,000/- and to pay compensation to the tune of Rs.50,000/- to the Complainant. With regard to the interest is concerned, the Complainant has taken contention that, direct the Ops to pay interest at 24% p.a. which appears to be unreasonable. If the interest is fixed at 8% p.a. from the date of the payment till the date of realization, we hope the ends of justice would met sufficiently. Further cost of litigation is fixed to Rs.1,000/- which appears to be reasonable amount. Accordingly we answered the point no.3 in the affirmative.

 

18. Point no.4: In the result, we passed the following:

 

ORDER

 

The application dtd.06.02.16 filed by the Ops under Sec.26 read with Sec.24A of the CP Act is dismissed devoid of any merits.

 

          2. The complaint filed by the Complainant is hereby allowed.  

 

          3. We direct the Ops to refund of Rs.4,50,000/- to the Complainant with interest at the rate of 8% p.a. from the date of payment to till the date of realization.

 

          4. We also direct the Ops to pay an amount of Rs.50,000/- in the form of compensation to the Complainant and also an amount of Rs.1,000/- being the cost of litigation.  Ops to comply this order within six weeks from the date of receipt of this order.

 

          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 20^th February 2018).

 

 

 

(SURESH.D)   MEMBER

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT

                                                                        

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

 

Sri.Manjunath.K. who being the Special Power of Attorney Holder of the complainant was examined. 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-A1	Sale agreement dtd.31.01.13
Ex-A2 to A4	Statement of account
Ex-A5	Legal notice dtd.05.09.14
Ex-A6	Postal receipts
Ex-A7	Postal acknowledgements
Ex-A8	Legal notice dtd.18.03.15
Ex-A9	Postal acknowledgements
Ex-A10	Postal receipts
Ex-A11	Receipts for making payments
Ex-A12	Layout brochure
Ex-A13	Original SPA deed 02.12.15

 

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

 

• NIL -

Copies of Documents produced on behalf of Opposite party/s

 

NIL -

 

 

 

 

(SURESH.D)   MEMBER

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT