sri yogeshwara V/S seeta.v.naik - Consumer Court Case

Karnataka

Bangalore Urban

CC/1045/08

seeta.v.naik - Complainant(s)

Versus

sri yogeshwara - Opp.Party(s)

prakash hegde k

28 Aug 2008

ORDER

BANGALORE URBAN DISTRICT CONSUMER DISPUTES REDRESSLAL FORUM, BANGALORE, KARNATAKA STATE.
Bangalore Urban District Consumer Disputes Redressal Forum, Cauvery Bhavan, 8th Floor, BWSSB Bldg., K. G. Rd., Bangalore-09.
consumer case(CC) No. CC/1045/08

seeta.v.naik						...........Appellant(s)
Vs.
sri yogeshwara						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

COMPLAINT FILED: 29.04.2008 28th AUGUST 2008 PRESENT :- SRI. A.M. BENNUR PRESIDENT SRI. SYED USMAN RAZVI MEMBER SMT. M. YASHODHAMMA MEMBER COMPLAINT NO. 1045/2008 COMPLAINANT Smt. Seetha V. Naik, W/o. Late Venkataramana Naik, Aged about 65 years, R/at. Shetageri, Ankola, Uttara Kannada District. Advocate (Prakasha Hegde. K) V/s. OPPOSITE PARTY Shri. Yogeshwar, Developer, Mega City (Bangalore) Developer and Builder Limited, Mega Tower No. 120, K.H. Road (Double Road) Bangalore 27. Advocate (R. Tharesha) O R D E R This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant to direct the Opposite Party (herein after called as O.P) to allot a site with respect to membership No. 5413 measuring 40 X 60 feet, register the same and pay a compensation on an allegations of deficiency in service. The brief averments, as could be seen from the contents of the complaint, are as under: Complainant being lured away with the advertisement and propaganda issued by the OP, who claims to be the promoters and developers of the residential sites in and around Bangalore, thought of becoming the member of the OP project floated in the name and style Vajragiri. OP accepted the membership of the complainant, who opted to purchase a site measuring 40 X 60 feet he is allotted with membership No. 5413. Complainant paid in all Rs.1,43,040/- towards the cost of the said site. OP executed the sale agreement on 22.03.1996. Thereafter somehow failed to complete the said project and failed to register a site in favour of the complainant inspite of the repeated requests and demands made by the complainant. Ultimately complainant got issued the legal notice on 08.02.2008, there was no response from the OP. Thus complainant felt the deficiency in service on the part of the OP. Under the circumstances she is advised to file this complaint and sought for the relief accordingly. 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP they did acquire the required quantity of land for the formation of the said township, they entered into an agreement to sell with the owners of land, even owners of land have executed GPA in their favour. In addition to that OP moved the statutory authorities namely the Deputy Commissioner, BMRDA and BMICAPA to sanction permission but unfortunately they refused to accord the sanction to convert the said agricultural land into non-agricultural purpose. Due to the change in the circumstances and the above said legal hurdles OP is unable to form the layout as promised. Thus it expressed its desire to refund the sital value to the complainant along with the interest as per Bank rate. Complainant has not come forward to receive the same. As the OP hands are tied because of the legal hurdles, it is unable to complete the said project. As on today no such vacant sites alleged to have been allotted to the complainant are available at the disposal of the OP, hence it is not in a position to identify it as prayed. There is no deficiency in service of any kind on the part of the OP. Among these grounds, OP prayed for the dismissal of the complaint. 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence and produced the documents. Then the arguments were heard. 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under: Point No. 1 :- Whether the complainant has proved the deficiency in service on the part of the OP? Point No. 2 :- If so, whether the complainant is entitled for the reliefs now claimed? Point No. 3 :- To what Order? 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on: Point No.1:- In Affirmative Point No.2:- Affirmative in part Point No.3:- As per final Order. R E A S O N S 6. At the outset it is not at dispute that the complainant became the member of the project floated by the OP in the name and style Vajragiri Township and opted to purchase a site measuring 40 X 60 feet. OP allotted the membership No. 5413 in favour of the complainant. Then complainant went on paying the sital value in all to the tune of Rs.1,43,040/-. OP executed an agreement of sale with respect to a site on 22.03.1996. The copy of the agreement to sale is produced. Now it is the grievance of the complainant that though he paid the said amount in the year 1996, OP failed to complete the said project and failed to register a site and put her in possession of the same evenafter the lapse of these 12 years. Thus she felt the deficiency in service on the part of the OP. 7. As against this it is contended by the OP that they did acquire the required quantity of land for the formation of the said layout. But unfortunately they are unable to get the required permission and sanction from the concerned Deputy Commissioner to convert the agricultural land into non-agricultural purpose. Not only that the lands acquired by them were taken over by the KIADB, there are some litigations crop up with respect to the possession of the said lands. Because of the legal hurdles and the intervention of BMRDA and BMICAPA, OP is unable to complete the said project. So the defence set out by the OP itself goes to show that it has not completed the said project as promised evenafter the receipt of the sital value. This hostile attitude of the OP must have naturally caused both mental agony and financial loss to the complainant. 8. Complainant invested her hard earned money to purchase a site, but she is unable to reap the fruits of her investment. OP having retained the said huge amount for all these 12 years must have accrued the wrongful gain to itself, thereby caused the wrongful loss to the complainant, that too for no fault of her. When OP came to know of the fact that it cannot complete the said project and form the layout because of the legal hurdles, it would have been more fair on the part of the OP to refund the sital value then and there only, but so for so good no such steps are taken by the OP. Here we find the deficiency in service. Under the circumstances we are satisfied that the complainant is entitled for the refund of the sital value with interest. 9. As it is there is no proof that OP has completed the project and the sites are approved by the statutory authority and they are at the disposal of the OP. When that is so, we cannot direct the OP to register the so called site as prayed by the complainant. The justice will be met by directing the OP to refund the sital value as observed by us in the above said paras. With these reasons we answer point nos.1 and 2 accordingly and proceed to pass the following: O R D E R The complaint is allowed in part. OP is directed to refund Rs.1,43,040/- with interest at the rate of 12% p.a. from April 1996 till realization and also pay a compensation of Rs.1,00,000/- and litigation cost of Rs.1,000/- to the complainant. This order is to be complied within 4 weeks from the date of its communication. (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 28th day of August 2008.) MEMBER MEMBER PRESIDENT p.n.g.

COMPLAINT FILED: 29.04.2008 28th AUGUST 2008 PRESENT :- SRI. A.M. BENNUR PRESIDENT SRI. SYED USMAN RAZVI MEMBER SMT. M. YASHODHAMMA MEMBER COMPLAINT NO. 1045/2008 COMPLAINANT Smt. Seetha V. Naik, W/o. Late Venkataramana Naik, Aged about 65 years, R/at. Shetageri, Ankola, Uttara Kannada District. Advocate (Prakasha Hegde. K) V/s. OPPOSITE PARTY Shri. Yogeshwar, Developer, Mega City (Bangalore) Developer and Builder Limited, Mega Tower No. 120, K.H. Road (Double Road) Bangalore 27. Advocate (R. Tharesha) O R D E R This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant to direct the Opposite Party (herein after called as O.P) to allot a site with respect to membership No. 5413 measuring 40 X 60 feet, register the same and pay a compensation on an allegations of deficiency in service. The brief averments, as could be seen from the contents of the complaint, are as under: Complainant being lured away with the advertisement and propaganda issued by the OP, who claims to be the promoters and developers of the residential sites in and around Bangalore, thought of becoming the member of the OP project floated in the name and style Vajragiri. OP accepted the membership of the complainant, who opted to purchase a site measuring 40 X 60 feet he is allotted with membership No. 5413. Complainant paid in all Rs.1,43,040/- towards the cost of the said site. OP executed the sale agreement on 22.03.1996. Thereafter somehow failed to complete the said project and failed to register a site in favour of the complainant inspite of the repeated requests and demands made by the complainant. Ultimately complainant got issued the legal notice on 08.02.2008, there was no response from the OP. Thus complainant felt the deficiency in service on the part of the OP. Under the circumstances she is advised to file this complaint and sought for the relief accordingly. 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP they did acquire the required quantity of land for the formation of the said township, they entered into an agreement to sell with the owners of land, even owners of land have executed GPA in their favour. In addition to that OP moved the statutory authorities namely the Deputy Commissioner, BMRDA and BMICAPA to sanction permission but unfortunately they refused to accord the sanction to convert the said agricultural land into non-agricultural purpose. Due to the change in the circumstances and the above said legal hurdles OP is unable to form the layout as promised. Thus it expressed its desire to refund the sital value to the complainant along with the interest as per Bank rate. Complainant has not come forward to receive the same. As the OP hands are tied because of the legal hurdles, it is unable to complete the said project. As on today no such vacant sites alleged to have been allotted to the complainant are available at the disposal of the OP, hence it is not in a position to identify it as prayed. There is no deficiency in service of any kind on the part of the OP. Among these grounds, OP prayed for the dismissal of the complaint. 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence and produced the documents. Then the arguments were heard. 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under: Point No. 1 :- Whether the complainant has proved the deficiency in service on the part of the OP? Point No. 2 :- If so, whether the complainant is entitled for the reliefs now claimed? Point No. 3 :- To what Order? 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on: Point No.1:- In Affirmative Point No.2:- Affirmative in part Point No.3:- As per final Order. R E A S O N S 6. At the outset it is not at dispute that the complainant became the member of the project floated by the OP in the name and style Vajragiri Township and opted to purchase a site measuring 40 X 60 feet. OP allotted the membership No. 5413 in favour of the complainant. Then complainant went on paying the sital value in all to the tune of Rs.1,43,040/-. OP executed an agreement of sale with respect to a site on 22.03.1996. The copy of the agreement to sale is produced. Now it is the grievance of the complainant that though he paid the said amount in the year 1996, OP failed to complete the said project and failed to register a site and put her in possession of the same evenafter the lapse of these 12 years. Thus she felt the deficiency in service on the part of the OP. 7. As against this it is contended by the OP that they did acquire the required quantity of land for the formation of the said layout. But unfortunately they are unable to get the required permission and sanction from the concerned Deputy Commissioner to convert the agricultural land into non-agricultural purpose. Not only that the lands acquired by them were taken over by the KIADB, there are some litigations crop up with respect to the possession of the said lands. Because of the legal hurdles and the intervention of BMRDA and BMICAPA, OP is unable to complete the said project. So the defence set out by the OP itself goes to show that it has not completed the said project as promised evenafter the receipt of the sital value. This hostile attitude of the OP must have naturally caused both mental agony and financial loss to the complainant. 8. Complainant invested her hard earned money to purchase a site, but she is unable to reap the fruits of her investment. OP having retained the said huge amount for all these 12 years must have accrued the wrongful gain to itself, thereby caused the wrongful loss to the complainant, that too for no fault of her. When OP came to know of the fact that it cannot complete the said project and form the layout because of the legal hurdles, it would have been more fair on the part of the OP to refund the sital value then and there only, but so for so good no such steps are taken by the OP. Here we find the deficiency in service. Under the circumstances we are satisfied that the complainant is entitled for the refund of the sital value with interest. 9. As it is there is no proof that OP has completed the project and the sites are approved by the statutory authority and they are at the disposal of the OP. When that is so, we cannot direct the OP to register the so called site as prayed by the complainant. The justice will be met by directing the OP to refund the sital value as observed by us in the above said paras. With these reasons we answer point nos.1 and 2 accordingly and proceed to pass the following: O R D E R The complaint is allowed in part. OP is directed to refund Rs.1,43,040/- with interest at the rate of 12% p.a. from April 1996 till realization and also pay a compensation of Rs.1,00,000/- and litigation cost of Rs.1,000/- to the complainant. This order is to be complied within 4 weeks from the date of its communication. (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 28th day of August 2008.) MEMBER MEMBER PRESIDENT p.n.g.