Date of Filing:02/05/2019
Date of Order:31/12/2019
BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE - 27.
Dated: 31STDAY OF DECEMBER 2019
PRESENT
SRI.H.R. SRINIVAS, B.Sc., LL.B. Rtd. Prl. District & Sessions Judge And PRESIDENT
SRI. D.SURESH, B.Com., LL.B., MEMBER
COMPLAINT NO.740/2019
COMPLAINANT | | SRINIVASA.M.V., Aged about 48 years, S/o Sri.M.V. Venkatesh, Residing at : Apartment No.2-A, Second Floor, “Maruthi Mansion”,Apartments. No.10-6-1& 10-2-6, 1st Cross Road, Saraswathipuram, Nandhini Layout, Bengaluru 560 096. (Sri.N.G. Sreedhar Adv. For Complainant) |
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Vs
OPPOSITE PARTIES | 1 | M/S TRANSCITY DEVELOPERS, (A Firm registered under Indian Partnership Act, 1932) Registered office at No.32, 2nd Floor, Bhashyam Circle (Above ShanthiSagar Hotel) Sadashivanagar, Bengaluru 560 080 Represented by its Partners/ OP Nos. 2 & 3 (a) & (b) Mentioned below: |
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| 2 | SRI RAVI, S/o Sri Srinivasaiah, No.32, 2nd Floor, Bhashyam Circle, Above shanthiSagar Hotel, Sadashivanagar, Bengaluru 560 080. |
| 3 | V. NANDAGOPAL, (Since deceased represented By his LRs mentioned herein Below) - Smt. ArunaNandagopal,
W/o Late V.Nandagopal, - Master, Krishna Prajwal
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S/o Late V. Nandagopal, (represented by his Natural guardian/mother Smt. ArunaNandagopal) Both residing at D.No.971/1, -
‘A’ Sector, Opp. To SBI, Yelahanka New Town, Bengaluru 560 064. -
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ORDER
BY SRI.D.SURESH, MEMBER.
1. ThisComplaintisfiled by the ComplainantU/S Section 12 of Consumer Protection Act 1986, against the Opposite Parties (herein referred in short as O.P) alleging the deficiency in service and to refund Rs.6,50,000/- along with interest at the rate of 18% per annum for the period form 19.08.2012 up to the date of full and final discharge and further pay Rs.10,00,000/- towards damages and to pay cost andfor such other reliefs as this Hon’ble Forum deems fit.
2. The brief facts of the complaint are that: O.P.No.1 is a private limited company engaged in the business of developing residential layout, O.P.No.2, 3 are its Partner. The O.Ps offered to sell the site measuring 80X60 ft.for Rs.19,20,000/- to be developed by them at Malemanchanahalli, JangamakoteHobli, ShdlaghattaTaluk, Chikkaballapura District and project was named as ‘ORCHID PARADISE PHASE-2’ and also entered into agreement of sale and received part consideration of Rs.6,50,000/- through different cheques on 04.05.2012, 25.05.2012 and 09.08.2012. He was waiting for further instructions and for execution of sale deed by receiving the balance of sale consideration. O.P. informed her through letter dated 11.10.2018 that there is aninjunction order against S.Ravi and Transcity Employees and they are ready to refund whatever the amount complainant has paid as per sale agreement Rs.6,50,000/-. Even after their assurance, OP did not come forward to repay the amount and went on postponing the date of repayment on one reason or the other. Legal notice was also issued on 07.01.2019. Inspite of it, they have neither replied nor executed the sale deed or refunded the amount.The cause of action for the compliant arose on 11.10.2018 when O.P write a letter assuring for the repayment of part sale consideration and hence this compliant.
3. Upon the service of notice, Ops remained absent and placed exparte.No counter statement filed by OP.
4. In order to substantiate their case, complainant has filed his affidavit evidence and documents. Heard the arguments.
5. On the basis of the pleadings of the complainant, the following points have arisenfor our consideration:-
(1) Whether the complainant has prove
deficiency in service on the part of the O.Ps?
(2) Whether the complainant is entitled to
the relief prayed for in the complaint?
6. Our answers to the above points are:-
POINT 1: In the Affirmative.
POINT 2: Partly in the affirmative
For the following:
REASONS
POINT No.1:-
7. On perusal of the pleadings of the parties and the evidence on record, it is an undisputed fact that, the complainant with an intention to purchase residential site in the proposed layout named as ‘ORCHID PARADISE’ formed by the O.Ps entered into agreement and paid amounts to the O.Ps as mentioned above on different dates through thereon.
8. As a Partner of the company, Sri V.Nandagopal has entered into agreement of sale by receiving Rs.6,50,000/- and further agreed to Receive Rs.12,70,000 being the balance of sale consideration and further agreed to get the sale deed registered. He has also undertaken to provide the required facilities for the formation of the residential sites. He has signed this agreement of sale for and on behalf of M/s Transcity Developers properties Ltd., as a Partner. When such being the case it cannot be held that the transaction is a private one between V. Nandagopaland the complainant. Further Ops have admitted to refund the amount by addressing letter to the Complainant on 11.10.2018. Even thereafter, they did not come forward to make repayment amount received by them.
9. Inspite of the legal notice issued, O.Ps have failed to repay the afore mentioned amount to the complainant, which amounts to deficiency in service, and further in not refunding the advance sale consideration received, is an unfair trade practice. Hence we answer POINT NO.1 IN THE AFFIRMATIVE.
POINT NO.2:
10. O.Ps failed in their responsibility and the complainant proved not to form layout, sites and get it registered in favour of the complainant which amount to deficiency in service on the part of O.Ps and O.Ps not refunding the amount to the complainant amounts to unfair trade practice also. Under the circumstances, we hold O.Ps are jointly and severally liable to pay Rs.6,50,000/- as shown in the agreements along with interest at the rate 12% per annum from the date of agreement of sale dated 19.8.2012 till payment of the same. Further the complainant has claimed compensation of Rs.2,00,000/- towards physical and mental harassment. No concrete evidence has been placed in that respect. Inspite of it, having paid the advance sale consideration, hoping for the registration of the site in their favour since 2012, they have lost their mental peace, put to mental tension, physical strain and financial loss. Had they invested the same amount in any of the real estate properties, the value of the property would have increased by five to six times and the complainants have lost the capital appreciation of the property. Hence we are of the opinion that if a sum of Rs.25,000/- towards damages awarded to the complainant and Rs.10,000/- towards cost of proceedings and litigation expenses would meet the ends of justice.
11. The counsel for the complainant has relied on the judgment passed by the HonourableSUPREME COURT OF INDIA in Civil Appeal Nos.4432-4450 of 2012 – M/s. Narne Constructions Pvt. Ltd. Vs Union of India wherein it is held by relying on the judgment of Lucknow Development Authority Vs M.K. Gupta (1994)I SCC 243 that in a transaction of sale of developed plot by the developer to the customers, there is relationship of service provider and the consumers and hence Consumer Protection Act is applicable.
12. It is also held in 2014 SCC NCDRC 266 Ravi Development Builders and others VsJayanthiBai V Ranka and others that the purchase of the house/site falls under the Consumer Protection Act.
13. It is also held in AIR 2004 SUPREME COURT 4080 – Haryana Urban Development Authority VsSmt.SumanBansal.
“(A) Consumer Protection Act (68 of 1986) , S.2(1) (g), S.21-Interest on compensation amount- Grant of , at rate of 18% - Held, not proper in view of decision in Ghaziabad Development Authority V. Balbir Singh, 2004 AIR SCW 2362: AIR 2004 SC 2141:2004 ALL LJ 1500.
(B) Consumer Protection Act (68 of 1986), S.14, S.2(1)(g) – Award of interest on compensation – Allotment of plot by Development Authority – Failure to give possession – complaint- District Forum ensured that possession is given at old rate – Party thus got benefit of escalation in price of land, therefore, there cannot and should not also be award of interest on money – However, considering fact that allotment was in 1987 and possession given very late, i.e, only in 1998, and compensation towards mental agony/harassment is very low- Supreme Court, instead of increasing compensation for mental agony and harassment and awarding compensation for escalation in costs of construction, in view of special features of case maintained award of interest at rate of 15%.”
14. In view of the same, we answer POINT NO.2 PARTLY IN THE AFFIRMATIVE and pass the following:
ORDER
1. The complaintis hereby partly allowed with cost.
2. OP No.1 to 3are jointly and severallyhereby directed to refund a sum of Rs.6,50,000/- along with interest at the rate 12% per annum from the date of Agreement of Sale i.e. 19.8.2012 till payment of entire amount.
3. Further OP No.1 to3 are jointly and severally hereby directedto pay Rs.25,000/- towards damages to the complainant and Rs.10,000/- towards cost of proceedings and litigation expenses.
4. The O.P No.1 to 3 arehereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.
Note: You are hereby directed to take back the extra copies of the complaints/ version, documents and records filed by you within one month from the date of receipt of this order.
(Dictated to the Stenographer over the computer, typed by her corrected and then pronounced by us in the Open Forum on this 31stDay of December 2019)
MEMBER PRESIDENT
ANNEXURES
1. Witness examined on behalf of the Complainant/s by way of affidavit:
PW-1 | SriSrinivasa.M.V– Complainant. |
Copies of Documents produced on behalf of Complainant/s:
Ex P1: Receipt for having paid Rs.50,000/- to the OP.
Ex P2: Original agreement of sale.
Ex P3: Letter issued by OP
Ex P4: Copy of the legal notice.
Ex P5: Postal acknowledgement.
Ex P6: Unserved returned postal cover.
Ex P7: Reply given by OP.No.1 and 2.
2. Witness examined on behalf of the Opposite party/s by way of affidavit:
RW-1: -Nil
Copies of Documents produced on behalf of Opposite Party/s
-Nil-
MEMBER PRESIDENT
A*
