Bangalore Urban 3rd Addl. District Consumer Disputes Redressal Forum
No.8, 6th Floor, Sahakara Bhavan, Cunningham Road, Bangalore-560 052.
Complaint Case No. CC/10/1850
1. Dr.Dhanalakshmi
W/o Dr.Manjunath,Aged about 49,2nd main,sampige layout,Bangalore-560079
Karnataka
………..Complainant(s)
Versus
1. M/s.Royal County
No.604,vaishnavi paradise,Sangam circle,8th block,jayanagar,Bangalore,Rep by its partner,Sri.V.Bhaskar reddy
Karnataka
…………Opp.Party(s)
BEFORE:
HONORABLE T. Rajashekharaiah PRESIDENT
HONORABLE H.M.SHIVALINGAPPA Member
PRESENT:
ORDER
PRESENT:
Sri. T. Rajashekhariah B.A. LL.B.,
PRESIDENT
Sri. H.M.Shivalingappa, B.Sc., LL.B.,
MEMBER
COMPLAINANT
Dr. Dhanalakshmi,
W/o Dr.Manjunath,
Aged about 42 years,
R/at No.49, 2nd Main,
Sampige Layout,
Bangalore-560 079.
V/S
OPPOSITE PARTY
M/s Royal County,
No.604, Vaishnavi Paradise,
Sangam Circle, 8th Block,
Jayanagar, Bangalore.
Rep by its Partner
Sri.V.Bhaskar Reddy.
ORDER
1. This Complaint is filed on 06.08.2010 under the provisions of the Consumer Protection Act, 1986. The Complainant has prayed for a direction to the Opposite Party to refund Rs.1,12,500/- with interest at the rate of 24% p.a. from 25.9.2006, till realization and to award such other reliefs.
2. The facts of the case in brief are as follows: With a view to own a residential site in the layout called Royal County to be formed by the Opposite Party at Huyilala Village, Yelavala Hobli, Mysore Taluk, the Complainant has paid a sum of Rs.1,12,500/- to the Opposite Party by way of cheque dt.25.9.2006 which has been acknowledged by the Opposite Party by receipt No.243 dt.15.9.2006. An agreement of sale dt.17.1.2007 came to be entered into between the Complainant and the Opposite Party whereby site No.468 of dimension 30ft x 50ft in the layout called Royal County at Huyilala Village, Yelavala Hobli, Mysore Taluk was agreed to be sold in favour of the Complainant for a sum of Rs.4,50,000/-. The receipt of Rs.1,12,500/- has been acknowledged in the said agreement of sale and the balance consideration of Rs.3,37,500/- shall be paid within one month from the date of approval of the layout. Thereafter, inspite of number of visits to the Opposite Party, there was no progress. Hence by invoking Clause-5 of the agreement of sale, the Complainant cancelled the sale agreement and called upon the Opposite Party to repay the amount along with interest by issuance of a legal notice dt.19.6.2010. The notice sent by RPAD was returned with shara “returned to sender”. However inspite of receipt of legal notice sent through certificate of posting, there was no response from the Opposite Party. Hence aggrieved by the inaction on the part of the Opposite Party, the Complainant has approached this Forum with the above prayer.
3. In the version, the Opposite Party has admitted the execution of agreement of sale dt.17.1.2007 whereby site No.468 of the dimension 30ft x 50ft in Royal County was agreed to be sold in favour of the Complainant for Rs.4,50,000/- as also receipt of part payment of Rs.1,12,500/- by the Complainant. It is contended by the Opposite Party that in respect of land where layout was to be formed, the previous Government had banned land conversion and approval of master plan from July 2006. Now the necessary conversion and approval of layout has been obtained by the Opposite Party and the site is ready for sale. Hence, there is no deficiency in service by the Opposite Party. According to the Opposite Party, in view of Point No.7 of the Application for allotment of plot, the Opposite Party is not responsible for any delay or inconvenience or loss caused due to the act of Government Agencies and further in view of Point No.6, the amount once paid is not refundable. It is further contended that the Complainant is not a consumer within the meaning of section 2 (1) (a) to (d) of the Consumer Protection Act, 1986 and the present Complaint filed after a period of 2 years is barred by limitation. Denying all other allegations as false, the Opposite Party has prayed for dismissal of the Complaint.
4. The points that arise for our consideration are:
(i) Whether the Complainant is competent to invoke the provision of the Consumer Protection Act, 1986?
(ii) Whether the Complaint is hit by law of limitation?
(iii) Whether the alleged deficiency in service by the Opposite Party is established?
(iv) If so, to what relief the Complainant is entitled?
5. Our findings to these points are as hereunder:
i) Affirmative
ii) Negative
iii) Affirmative
iv) As per the final order.
R E A S O N S
6. POINT NO.1: In the light of the decision of the Hon’ble Supreme Court of India in the case of Lucknow Development Authority V/s M.K.Gupta (1994) I SC 243, an immovable property can also become subject matter of dispute under the Consumer Protection Act, 1986. In this proceeding, the subject matter is an immovable property. Hence, the Complainant is competent to invoke the provisions of the Consumer Protection Act, 1986. Hence, the contention of the Opposite Party holds no water. Accordingly, this point is answered in the affirmative.
7. POINT NO.2: It is contended by the Opposite Party that the present Complaint is hit by law of limitation since the Complainant has not approached this Forum within 2 years from the date of cause of action. This contention is not acceptable in view of the decision of the Hon’ble National Consumer Disputes Redressal Commission in the case of Juliet V. Quadros v/s Mrs. Malthi Kumar (2005) CTJ NCDRC 499) wherein it is held that the cause of action remains continuous till allotment of site or till refusal. Admittedly, there is neither allotment and sale of the site, nor refund of the amount paid. When that is the position, it has to be held that the question of limitation has lost its importance. Accordingly, this point is answered in the negative.
8. POINT NO.3: In order to establish payment of Rs.1,12,500/- to the Opposite Party towards part payment in respect of site promised under agreement of sale dt.17.1.2007, the Complainant has produced receipt No.243 dt.15.9.2006 issued by the Opposite Party. That apart, the receipt of part consideration of Rs.1,12,500/- by way of cheque dt.25.9.2006 has been acknowledged in the agreement of sale. By the said agreement, the Opposite Party has agreed to sell site No.468 of the dimension 30ft x 50ft in Royal County layout to be formed by the Opposite Party in Mysore Taluk for a sum of Rs.4,50,000/-. The balance consideration was payable within one month from the date of approval of the layout. According to the Complainant, there was no progress towards formation of the layout and execution of sale in terms of the agreement by the Opposite Party. When number of requests was made to the Opposite Party, there was no compliance. Hence, he got issued a legal notice dt.19.6.2010 whereby cancelling the agreement of sale, the Complainant requested the Opposite Party for refund of the amount. Inspite of receipt of the legal notice sent through certificate of posting, there was no compliance by the Opposite Party. Hence, the Opposite Party is deficient in service. Though the Opposite Party submitted that there was a ban by the previous Government for conversion and approval of master plan in respect of the land in question and now the layout has been approved and the site is ready for sale, except the statement of the Opposite Party in its version and production of certain copies of documents, there is no such intimation by the Opposite Party to the Complainant about its readiness to execute the sale deed. After waiting for reasonable time, the Complainant has cancelled the agreement of sale by issuance of legal notice and sought for refund of the amount along with interest in terms of Clause-5 of the agreement of sale. Even then, there is no compliance of the demand made therein. At one stage, the Opposite Party has contended that in view of Point No.6 in the application for allotment, the amount once paid will not be refundable and as per Point No.7 of the application, the Opposite Party is not responsible for any delay or inconvenience or loss caused due to the act of Government Agencies. However, the Opposite Party has not made available copy of the said application for allotment to know whether such an agreement is arrived at between the parties. Further without there being any site on hand, the Opposite Party had proceeded to allot a particular site in favour of the Complainant under agreement of sale dt.17.1.2007. In the circumstances, when there is neither allotment and sale of site, nor refund of the amount paid, that itself amounts to deficiency in service. Accordingly, this point is held in the affirmative.
9. POINT NO.4: The Complainant has prayed for a direction to the Opposite Party to refund Rs.1,12,500/- along with interest at 24% p.a. from the date of payment till realization. In view of our finding on Point No.3, we are of the view that the Complainant is entitled for refund of Rs.1,12,500/- with reasonable interest at 12% p.a. from the date of payment till realization. Accordingly, this point is answered in favour of the Complainant. Hence, we proceed to pass the following:
Case called and the following separate Order has been passed;
O R D E R
This Complaint is allowed. The Opposite Party is directed to refund to the Complainant a sum of Rs.1,12,500/- (Rupees one lakh twelve thousand five hundred) along with interest at 12% p.a. from 25.9.2006 till actual payment along with a sum of Rs.30,000/- (Rupees thirty thousand only) towards costs of this proceeding. The Opposite Party is granted 30 days time from today to comply this Order.
This Order is pronounced on this the 29th day of March 2011.
H.M. SHIVALINGAPPA T. RAJASHEKHARIAH
MEMBER PRESIDENT
[HONORABLE T. Rajashekharaiah]
PRESIDENT
[HONORABLE H.M.SHIVALINGAPPA]
Member