BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 05^TH DAY OF AUGUST 2024

COMPLAINT No.390/2023

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

(a) Direct the OP to return the amount of Rs.5,56,000/- along with interest at 21% p.m., from 26.09.2014 till realization.

(b) And to pass such other order which deemed just and appropriate in the circumstances of the case.

2. The case set up by the complainant in brief is as under:-

The complainant has booked a site bearing No.1866 measuring 30 X 40 feet and OP has made another offer of Site No.1823 as one free and also has executed MOU on 26.09.2014 with terms and conditions at the proposed project of the OP called San City Gold at Chikkakaragudu Village and Kalludi Village, Kasaba Hobli, Gowribidanuru Taluk, Chikkaballapura District.  As per the terms of the agreement the total sale consideration of site No.1866 together with registration charges, phasing charges was Rs.3,10,000/- and free site No.1823 and towards the site registration charges against the free site Rs.60,000/- and totally amounting to Rs.3,70,000/- has been paid by the complainant to the OPs. The OPs have also issued receipt for having received the said amount on 20.08.2014.

3. After receipt of the amount they have executed MOU on 26.09.2014 with terms and conditions.  After collecting the amount and execution of MOU the OPs did not hand over the physical possession of the site. The complainant kept on demanding and approaching the OPs in their office. Despite demand and personal approach they failed to hand over the sites in question and they have postponed the date by giving one or the other reason.  Inspite of lapse of three years the OPs have not honored their commitment and finally they have executed one more sale agreement on 07.01.2017 assuring to the complainant to hand over the same sites by giving acknowledgement towards receipt of full amount of Rs.3,70,000/-.  As per the agreement the OPs have agreed to hand over the physical possession of the sites as agreed earlier.

4. Despite the execution of second agreement dated 07.01.2017 the OPs failed to comply the terms and conditions of the MOU and failed to hand over the physical possession of the sites.  Again the OPs have assured the complainant to execute one more MOU on 14.12.2017 and assured to hand over the physical possession of the sites in question. The OPs have also demanded the complainant to pay some more amount of Rs.93,000/- per site towards the installation of water connection sanitary connection and electricity connection.  The complainant has paid Rs.93,000/- on 17.02.2020 and the same has been accepted by the OPs by issuing the receipt.  The OPs have similarly collected Rs.93,000/- for another free site and the complainant ahs paid the amount.

5. After collecting the entire amount together with charges as stated above, the OPs neither complied to the terms and conditions of the MOU by handing over the sites in question. The conduct of the OPs that by collecting full amount for the purpose of selling sites in question and without handing over the physical possession of the sites till this day amounts to cheating the customer and also attracts deficiency in service and unfair trade practice.   At last the complainant has issued a registered legal notice on 12.07.2023 calling upon the OPs to return the amount totally paid Rs.5,56,000/- with interest @ 21% p.a., since the OPs have illegally kept the amount without honoring any terms and conditions of the MOU and without handing over physical possession of the sites in question. Even after receipt of the said notice on 17.07.2023 the OPs neither complied with the demands of the complainant nor issued any reply. Hence the complainant having no other alternative have filed this complaint.

6. In response to the notice, OP appears and files version. The OP has admitted all the allegations made in the complaint relating to the membership of the complainant and the sale consideration amount paid by him and also the MOU entered between them.

7. It is the specific contention taken by the OP that he was supposed to register the sale deed in favour of the complainant within two years from the date of execution of the said MOU.  Even though he has applied for conversion of land before concerned government authorities in November 2016. The conversion order was passed by the authorities in 2018. In view of the demonetization in the month of November 2016 the whole nation suffered heavily in terms of finance and the OP has also suffered finance problem due to sudden changes in monitory policies.  It even halted his various project developments.

8. After obtaining the approvals from the concerned government authorities as per the new law of the government OP was compelled to register this project under RERA and was then permitted to register the plot to his customers. This OP has also offered the complainant an exchange site in another project which was ready for registration the complainant not only disagreed to the same but even filed this petition before this commission to exploit the helplessness situation of the OP at that time.

9. It is further case of the OP that he is ready to provide alternative site to the complainant for registration towards the executed MOU with the consent of the complainant provided he pays the deficit amount towards the existing price of the alternative site.  This OP is ready to get the plot register within six months from the date of consent from the complainant. Due to outbreak of the covid-19 this OP is not in a situation to refund the amount paid by the complainant since the economic condition of the OP is as bad as the economic condition of the nation.  Hence OP prayed for dismissal of the complaint.
10. The complainant has filed his affidavit evidence and relies on 10 documents.  The OP has filed his affidavit evidence and relied on two documents.

11. Heard the arguments of advocate for the both parties. Perused the written argument filed by the OPs. 

12. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

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

Point No.1:  Affirmative

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

14. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version, affidavit evidence, written argument filed by the OPs.

15. It is undisputed fact that the complainant become the member of the project floated as San City Gold and he opted to purchase the schedule property measuring 30X40 feet site bearing NO.1866 and free site bearing No.1823, for Rs.3,70,000/- and paid the entire sale consideration amount on different dates and entered into MOU as per Ex.P1. After receipt of consideration amount, again demanded Rs.93,000/- per site towards the installation of water connection, sanitary connection and electricity connection and again entered into another MOU on 02.06.2017. The complainant ahs paid Rs.93,000/- per site on 17.02.2020 and the OPs have issued receipts.

16. After receipt of the full sale consideration and also some more amount of Rs.93,000/- per site, the OP has started ignoring the complainant and he has neither started to complete the project nor informed the progress of work to the complainant.  The complainant has issued legal notice on 12.07.2023 as per Ex.P8 requesting the OPs to return the amount was paid by him. Inspite of service of notice, the OPs neither complied the demand of the complainant nor returned the amount.

17. On the other hand, the contention taken by the OP is that he was unable to complete the project and to register the sale deed in favour of the complainant as agreed by him within two years from the date of MOU since there was a delay in obtaining the conversion order and also he has suffered heavily in terms of finance due to demonetization and as per the new law he was compel to register the project under the RERA.  In compliance of the same he was not able to get the plot registered in the name of the complainant as per the MOU. Even now he is ready to provide alternative site to the complainant within six months after obtaining the consent of the complainant.  If the complainant is ready to pay the deficit amount towards the existing price of the alternative site, but the complainant was not agreed to get the alternative site proposed by the OP.

18. When the complainant has paid the entire amount but the OP has neither started the project nor got registered the schedule plots in the name of the complainant.  He was not available for the complainant when the complainant has made several attempts to contact the OP. The OP would have informed the complainant about his problems and requested the complainant for granting time to complete the project. Instead of informing the complainant the OP made himself not available to the complainant. In view of this the complainant has approached this Commission for refund of the amount from the OP.

19. The complainant also cannot wait for an uncertain period for getting the schedule plots/sites registered in his name when the project itself is not at all started by the OP as assured by them. It is the duty of the OP to get all the approvals before calling for the public to purchase the site. Instead of that the OP has collected the money from the proposed purchasers and he has not started the project by taking untenable reasons.  When the OP has not completed the project and get the schedule plots registered in the name of the complainant after obtaining entire sale consideration amount, amounts to deficiency of service and negligence and unfair trade practice. Hence the complainant is entitled for the relief.  Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.

20. Point No.3:- In view the discussion referred above the complaint is liable to be allowed in part.  OP is liable to refund Rs.5,56,000/- along with interest at 9% p.a., from respective payment to till the date of realization with litigation expenses of Rs.20,000/- to the complainant. We proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OP is directed to pay Rs.5,56,000/- with interest at 9% p.a., from the date of respective payment to till the date of realization.
3. OP is further directed to pay litigation cost of Rs.20,000/- to the complainant.
4. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 12% p.a. after expiry of 60 days on Rs.5,56,000/- till final payment.
5. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 05^TH day of AUGUST, 2024)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;