State Consumer Disputes Redressal Commission
Syed Abdul Aziz vs M/S Megacity(Bangalore) Developers & ... on 4 August, 2023
1 CC/13/2020
Date of Filing : 09.01.2020
Date of Disposal : 04.08.2023
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)
DATED THIS THE 04th DAY OF AUGUST 2023
PRESENT
Mr. K.B.SANGANNANAVAR : JUDICIAL MEMBER
Mrs M.DIVYASHREE : LADY MEMBER
CC-NO.13/2020
Syed Abdul Aziz
S/o Shamsuddin,
Aged Major,
Permanent Resident of
Opp.to Multan Bakery, No.147,
Saharanagar, Hotgi Road,
Solapur, Maharastra-413003
Rep. By GPA Holder Syed Waliullah,
S/o Late Syed Habeebulla,
R/at No.20-2-424, Bara Galli,
Hussaini Alam, Bahadurpura,
Hyderabad-500064 . ..Complainant/s
(By Adv.Sri.Syed Imran)
VS
1.
M/s.Megacity (Bangalore) Developers
& Builders Ltd.,
Mega Towers, No.120,
Kengal Hanumanthaiah Road,
Bangalore-560027
Rep. by its Directors
1) P.Mahadevaiah,
2) C.P.Gangadhareshwara,
3)H.R.Ramesh ... Opposite party/s
(By Adv.Sri.B.Shivakumar)
2 CC/13/2020
ORDER
BY Mr.K.B.SANGANNANAVAR : Pri.Dist & Session Judge (R) - JUDICIAL MEMBER.
1. This is a complaint filed U/s.17 of CPA 1986 to direct OP to allot and register an alternate site in place of site no.417 measuring 60‟x40‟ and to pay interest at 18% p.a. on his payments made towards said site and to pay Rs.10 lakhs + Rs.10 lakhs towards mental agony and other expenses along with interest at 17% p.a. till realisation.
2. The Complainant is represented by his GPA holder Mr.Syed Waliullah. Complaint had entered into an agreement to sale dtd.05.06.1996 with OP and under the said document had agreed to purchase residential plot bearing site no.417, Block-2, 1st phase, Vajragiri township situated in various survey nos of Sheshagirihalli, Manchanayakanhalli, Bidadi hobli, Ramanagaram taluk, Krishnarajapura and Hampapura, Kengeri hobli, Bengaluru south taluk measuring 60‟x40‟. He had paid Rs.1,32,000/- in monthly instalments and had paid Rs.17,000/- as developmental charges. He had paid Rs.1,32,000/- as on 24.06.2002 and had paid Rs.17,000/- on 28.08.2003. OP had issued possession certificate bearing PCR no.1 dtd.25.11.2005 confirming possession of site no.417 was given to Complainant, but it was not so and in reality was a paper document. However the OP on one or 3 CC/13/2020 the other pretext went on postponing on postponing to execute sale deed or to allot alternative site in lieu of the site agreed to be sold. The Complainant is working at Jeddah KSA as a Journalist was made to run pillar to post. On each visit he had incurred huge amount which went in vain. OP knowing full well that there is no site available described under the agreement of sale, proceed to issue possession certificate to make believe the Complainant and he was always ready to obtain registered sale deed bearing expenditure towards stamp duty and registration charges. However, finally OP replied on 30.10.2018 to his letter stating that they are unable to give any new time frame to allot alternative site. When Complainant issued legal notice dtd.09.03.2019, OP issued untenable reply on 09.04.2019. In such situation complainant had raised consumer complaint to get redress his dispute under the provisions of CPA 1986.
3. OP contested the complaint before the Forum below through learned counsel. It was their version as their company proposed to form the layout comes within the purview of Bengaluru - Mysuru Infrastructure Corridor Area Planning Authority (BMICAPA) and since BMICAPA had issued a letter dtd.13.08.2001 to the Revenue Department to the effect that the land in question cannot be converted for non-agricultural purposes, as such their 4 CC/13/2020 company took up a project as there were no legal hurdles for the formation of the layout. However, due to the change in the circumstances their company is not in a position to complete the project as proposed and their company is not in a position to complete the formation of the residential layout in order to execute the sale deed pursuant to the agreement executed in favour of the Complainant. As OP company is having defective title because of fraud played by landlords and the landlords were colluded with the third parties executed a sale deeds in favour of third parties, in such circumstances the OP company cannot execute the registered sale deed in favour of the Complainant.
4. OP company admits the receipt of Rs.1,49,000/- from Complainant which was utilised by the company for the formation of layout and they have invested such many in their company which is seized off in civil litigations and the acquisition proceedings, still their company is waiting for finalities of acquisition proceedings, since land is under acquisition. The amount paid by the company to the owners of the said land is also blocked. Their company is ready and willing to refund the advance amount paid by the Complainant without interest and damages. The complaint is barred by law of limitation. Company is not liable to pay the exorbitant interest, any damages, travelling expenses and mental agony as claimed by the 5 CC/13/2020 Complainant. The claim of the Complainant is not maintainable is liable to be dismissed.
5. In view of rival contentions of parties to the complaint, Commission held an enquiry by receiving materials from respective parties, closed enquiry and heard learned counsels and now we have to decide:
6. Whether, Complainant proves OP rendered deficiency in service in respect of allotment of site/schedule property measuring 60‟x40‟ as described in the complaint and if proved is he entitle for relief sought for ?
7. Let us examine the materials placed on record by parties to the complaint. The Complainant is represented by Mr.Syed Waliullah, since complainant at the relevant time was working at Jeddah KSA as a Journalist, which in fact is not disputed by OP. Ex-C2 is an agreement of sale dtd.05.06.1996, agreed between Complainant and OP, is again not in disputed, wherein could see description of schedule property, which measures 40‟x60‟ and sale consideration was fixed at Rs.1,32,000/-. It is not in dispute that, Complainant had paid Rs.1,32,000/- in monthly instalments commencing from 14.05.1996 till 24.06.2002 and had also paid Rs.17,000/- on 28.08.2003 towards development charges and to find support he has produced Ex-C4 to C8 copies of receipts, which in fact are not 6 CC/13/2020 disputed by OP. He has also produced Ex-C9 possession certificate dtd.25.11.2005 in respect of site no.417 in Block F2 of 1st phase in Vajragiri township measuring 60‟x40‟ with specific boundaries signed for MD and Director Town Planning mentioning Membership number 9649 which of course belongs to Complainant herein, could be said a paper possession certificate itself suffice to hold OP rendered deficiency in service being service provider involved in housing activity. The remaining documents would be commencing from Ex-C10 to C17 are letters, emails, legal notice, reply thereon, postal receipt and postal acknowledgement, of which, Ex-C17 is reply notice dtd.09.04.2019, wherein OP replied as not ready to accept demand of the Complainant and ready to refund the instalments amount along with interest at 8% p.a. till realisation as ordered by Hon‟ble National Commission in RP/2815/2007 dtd.16.04.2007.
8. During the course of enquiry on the basis of materials placed by Complainant as per Ex-C1 to C17 and OP as Ex-R1 to R15, we have to make out, so far, OP has not obtained an approval of BMICAPA to form layout. The reason assigned due to unforeseen circumstances. It is true that, OP has produced copy of KIADB Gazette Notifications dtd.19.12.1998 and 21.07.1999, copy of BIMCAPA notification dtd.13.08.2001, copy of BIMCAPA 7 CC/13/2020 Endorsement dtd.17.02.2003, copy of Encumbrance Certificate, Copy of plaint in OS/2100/2014, OS/1017/2015 and order sheet in OS/1017/2015, copy of sale deed dtd.27.06.2006, 04.12.2006 & 27.04.2007, Copy of RTC, copy of sale agreement dtd.27.02.1996 & copy of GPA. OP has also produced copy of order of Hon'ble National Commission in RP/2815/2007 and submits that OP could not execute the sale deed in respect of schedule property in favour of the Complainant and he is ready and willing to refund whatever the amount received with interest since Hon'ble National Commission in RP/2815/2007 ordered to pay 8% interest on such amount which OP company is ready to give to the Complainant. It is therefore, it goes without saying that OP rendered deficiency in service and the Complainant is entitling to claim reliefs deem fit which has to be examined by the Commission.
9. Learned counsel for Complainant submits that money which Complainant had paid to OP was in between 1996 to 2003, is now totally devalued and the land during 1996 in and around Bengaluru urban or rural district now comes within Ramanagara district is skyrocketed and had Complainant invested Rs.1,49,000/- in some other project at the relevant time could have got a site and could have also build his own home, which he 8 CC/13/2020 has lost, because of OP rendered deficiency in services. On the contrary, learned counsel for OP submits that, complaint itself is barred not only under consumer law but also under limitation act, which in our view is unacceptable, since OP held Rs.1,49,000/- without allotting site as agreed and the process of acquisition etc; which according to him is under litigation suffice to hold that the complaint filed is not barred either under CPA 1986 or The Limitation Act. OP had utilised such money in developing and building activity and if any disputes between land lords is nothing to do with the dispute, since money is paid to OP company. The land cost at the relevant time was too low or it was on par with the price paid under the sale agreement. This complaint is raised on 09.01.2020, as such contention of OP that the complaint is barred is not accepted.
10. It is found from enquiry that the Complainant had became member of OP on 10.04.1996 and he sought allotment of site measuring 60‟x40‟ and obtained a sale agreement from OP dtd.05.06.1996 by paying Rs.1,32,000/- as on 24.06.2002 through instalments and Rs.17,000/- on 28.08.2003. Thus had paid Rs.1,49,000/- as on 28.08.2003. It is not that Complainant has sat quite without demanding OP to execute registered sale deed in respect of site mentioned in the agreement of sale. It is also found 9 CC/13/2020 from the enquiry that the said sale agreement is not acted upon due to OPs actions and omissions, which could be borne from Ex- R1 to R15. Even as on the date of complaint and now OP could not be able to discharge his obligations agreed under the sale agreement. It is to be noted herein in reply notice dtd.09.04.2019 agreed to refund the amount paid in instalments by the Complainant along with interest at 8% p.a. as decided by the Hon'ble National Commission in the cited revision petition, suffice to hold that complaint filed on 09.01.2020 before the Commission is well within time limitation. Hence, we hold complaint filed is in time and it is not barred either under CPA 1986 or Limitation Act.
11. Learned counsel for OP placed reliance decided by the Hon‟ble Supreme Court reported in 2014 (14) SCC 773 in the case of Ganesh Lal vs. Shyam, wherein held "where a sale of plot of land simpliciter is concerned, and if there is any complaint, same would not be covered under Consumer Protect Act". In our view on facts of the case does not come to the assistance of OP, since Hon‟ble Supreme court held „as far as the housing construction by sale of flats by builders or societies is concerned, that would be on a different footing - where a sale of plot of land simpliciter is concerned, and if there is any complaint, same would not be covered under Consumer Protect Act‟, which is not applicable to 10 CC/13/2020 the present case on hand, since OP is the developers and builders under the name and style of Megacity (Bangalore) Developers & Builders Ltd., Learned counsel further placed another reliance reported in 2018 (2) CPR 170 (NC) in the case of Rakesh Nag vs. Kakali Manna & another, wherein Hon'ble National Commission held "The transaction of sale simpliciter, as in the case on hand, also does not come within the purview of the Consumer Protect Act 1986 as was held by the Hon‟ble Supreme Court in Nitin Construction Pvt., Ltd., vs. Union of India & Ors II (2002) CPJ 4 (SC)", is again not applicable to the case on hand.
12. Learned counsel for OP placed copy of the decision of Honb‟le National Commission in RP/2815/2007 in the case of Gulnawaj begum vs. Mega City (Builders) & Ors. Dtd.09.11.2011, wherein it was held that „the interest awarded at 8% by the District Forum in its discretion was adequate and no case for enhancement of rate of interest was made out‟. Further in CC/180/2020 in the case of Sunny Ahuja vs. Raheja Developers ltd., dtd.03.01.2022 Hon‟ble National Commission awarded 9% simple interest from the date of respective deposits till date of payment on Rs.1,19,88,202/-. In this decision awarded Rs.50,000/- as litigation cost and for non- compliance of the award within six months penal interest awarded of 15% for the period of delay. We have gone through these 11 CC/13/2020 decisions and in particular RP/2815/2007, wherein OP herein the case on hand was also a party as Respondent in the said Revision and it was decided on 09.11.2011, wherein directed to refund Rs.1,51,200/- along with interest at 8% p.a. by the Forum below was held adequate.
13. It is to be noted herein that this complaint is raised in 2020 and it is proved had paid Rs.1,49,000/- by 2003, when the land cost was low or on par with the site dimension including profit to be earned by OP by involving in such activity. It is also to be taken notice of the fact lending rate then was moderate and now by lapse of years on years land cost has been skyrocketed while money value is devalued. In such circumstances, awarding interest now at 8% p.a. in this case could be said inadequate. We have also to take notice of the fact that in the revision cited supra Hon‟ble National Commission dismissed the RP for non-prosecution and while doing made some observation which in our view binds the parties in the said case.
14. In view of discussion made above, since the Complainant herein has sought for award of interest at 18% p.a., which also cannot be considered and since in the recent past Hon‟ble Apex Court awarded interest between 10 to 12% p.a. in similar such matters and find support it would be appropriated to refer herein (2019) 5 12 CC/13/2020 Supreme Court Cases 725 in the case between PIONEER URBAN LAND AND INFRACTURCTURE LIMITED Versus GOVINDAN RAGHAVAN, had awarded interest at 10% p.a. and if such interest would be awarded would meet the ends of justice.
Accordingly we proceed to allow the complaint in part and directed OP to refund of Rs.1,49,000/- along with interest at 10% p.a. from the date of receipts till realisation.
Further directed to pay compensation of Rs.1 lakh and cost of litigation at Rs.25,000/- within 45 days or else Rs.1,25,000/- shall also carry interest at 8% p.a. from the date of default till realisation.
15. Supply free copy of this order to both the parties.
Lady Member Judicial Member
*NS*