State Consumer Disputes Redressal Commission
Mr. T. Sankar Ganesh vs M/S Fortune Projects And Others on 17 August, 2022
Cause Title/Judgement-Entry KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION BASAVA BHAVAN, BANGALORE. Complaint Case No. CC/68/2014 ( Date of Filing : 24 Apr 2014 ) 1. Mr. T. Sankar Ganesh Son of Mr.Thiangaranjan, Aged about 35 years, Duly Represented by his father And power of Attorney holder Mr.M.Thiangaranjan aged about 74 years presently residing at No. E-4, Krisal Coral-1, Kristal Campus-10, Yamare Village, Sarjapur Hobli, Bangalore-562 125. . ...........Complainant(s) Versus 1. M/s Fortune Projects and others A Registered Partnership Firm, At No.6, level 3, Park Road, Tasker Town, Bangalore-560 001. Represented by its Managing Partner, Mr.Mohmmed Ghouse Farooq. . 2. Mr.Mohmmed Ghouse Faro Managing Partner, M/s.Fortune Projects, At No.6, Level 3, Park Road, Tasker Town, Bangalore-560 061. 3. M/s. Fortune Group At No.6, Level 3, Park Raod, Tasker Town, Bangalore-560 061. Represented by its Director, Mr.Syed Thanveer. . 4. Mr.Syed Thanveer Director, M/s.Fortune Projects At No.6, Level 3, Park Road, Tasker Town, Bangalore-560 061. . ............Opp.Party(s) BEFORE: HON'BLE MR. Ravishankar PRESIDING MEMBER HON'BLE MRS. Smt.Sunita Channabasappa Bagewadi MEMBER PRESENT: Dated : 17 Aug 2022 Final Order / Judgement THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU. (ADDL. BENCH) DATED THIS THE 17th DAY OF AUGUST, 2022 PRESENT SRI RAVI SHANKAR - JUDICIAL MEMBER SMT. SUNITA C.BAGEWADI - LADY MEMBER COMPLAINT NOS.68/2014 AND 71/2014 Mr.T.Sankar Ganesh, Son of Mr.Thiagarajan, Aged about 35 years, Duly represented by his father And power of Attorney holder Mr.M.Thiagarajan, aged 74 years, Presently residing at No.E-4, Kristal Coral-1, Kristal Campus-10, Yamare village, Sarjapur Hobli, Bangalore-562 125 ......Complainant in complaint No.68/2014 Lakshmanan Choodamani, S/o Mr.S.Choodamani, 4087, New Scottsdale Drive, Beaverton OR 97006, USA Represented by his father and P.A.holder Mr.S.Choodamani, Residing at No.2, Lakshmi Nagar, .......Complainant in complaint No.71/2014 (By Shri Unni Krishnan.M., Adv.,) -Versus- M/s Fortune Projects, A Registered Partnership Firm, At No.6, Level 3, Park Road, Tasker Town, Represented by its Managing Partner, Mr.Mohammed Ghouse Farooq, Mr.Mohammed Ghouse Farooq, Managing Partner @ M/s Fortune Projects, At No.6, Level 3, Park Road, Tasker Town, Bangalore- 560 061 At No.6, Level 3, Park Road, Tasker Town, Bangalore- 560 061 Represented by its Director Mr.Syed Thanveer Mr.Syed Thanveer Director, At No.6, Level 3, Park Road, Tasker Town, Bangalore- 560 061 ..... Opposite party/s (By Sri/Smt. Kamal & Bhanu, Advs.,) (Opposite parties are same in both complaints) :COMMON ORDER:
BY SMT.SUNITA C.BAGEWADI, MEMBER The complainants filed these complaints against the Opposite Parties alleging negligence and deficiency in service and pray for direction against the Opposite Parties to refund a sum of Rs.34,20,000-00 and Rs.34,20,000-00 respectively collected from the complainants towards development charges with interest @ 25% p.a. from the date of payments till the date of settlement and to pay a sum of Rs.3,00,000-00 each case towards mental agony, trauma, harassment etc. for unfair trade practice and to re-compensate the complainants the market value prevailing in the same area including the expenses incurred towards registration charges, stamp duty and other incidental charges of Rs.1,25,000-00 each case paid to the Opposite Parties from the date of the order passed and to pay the complainants a sum of Rs.1,00,000-00 each case being the legal and other incidental expenses incurred by the complainants and grant such other relief as prayed in the complaints.
2. The Opposite Parties are same in both the complaints and the facts involved in the complaints are one and the same. Hence, for the sake of convenience all these complaints have taken up together to pass a common order.
3. The brief facts of the complaints are as under:-
The complainants were drawn to the advertisement of the Opposite Parties as they have professed that they would develop the aforesaid integrated township spread over / across 50 acres of "Private Paradise" free from the Hustle -Bustle of the city. The complainants after seeing the advertisement in the newspaper, evinced interest solely on the basis of the approbation and offer made by the Opposite Parties and thus after negotiations for purchase of Villa plot bearing No.213 and 214 with developments and in good faith that the Opposite Parties would deliver the plot with amenities an agreement of sale was entered into between the complainant and the Opposite Parties on 24-5-2011. The said agreement of sale being for "sale and development of a residential site" bearing no.213 and 214 measuring 2400 sq.ft each in the residential layout known as "FORTUNE KOSMOS"
3(a). The complainants further submitted that the agreement of sale was not confined only to the conveyance of the plot but also to the development charges for developing and providing the amenities as promised by the Opposite Parties as the Opposite Parties had promoted their venture i.e. Fortune Kosmos for development of land into house plots and invited the complainant through paper publication and brochures. Further the sale price /consideration was not confined to the plot along but also encompassed the development of sites and providing infrastructure as spelt out by the Opposite Parties in their brochures, advertisement etc. The Opposite Parties had undertaken the obligation to develop the plots and informed the complainant that it had obtained permissions/approvals for developing the layout. The transaction / contract between the complainant and the Opposite Parties is not a sale simpliciter but coupled with obligations for development and with specific provisions of infrastructure. As such there is inevitably an element of service in the said discharge of obligations. The brochure which is issued to the complainant by the Opposite Parties on the basis of which the complainant had proceeded further in the contract had specifically promised to provide amenities / development in the layout.
3(b). The complainants further submitted that in term of the aforesaid agreement of sale dated 29-4-2011, the complainants had to pay a sum of Rs.43,20,000-00 each case towards sale consideration /cost of plot with development charges / amenities being at Rs.34,20,000-00 each case and the balance Rs.9,00,000-00 each case for the plot bearing No.213 and 214 in the layout "FORTUNE KOSMOS".
3(c). The complainants further submitted that, after paying the full sale consideration for the plots, the Opposite Parties only conveyed the plot bearing nos.213 and 214 respectively in the favour of complainants by way of deed of sale dated 8-6-2011 with the same being registered as document nos.SRJ-1-01034/2011-12 and SRJ-1-01033/2011-12 stored in CD nos.SRJD70 at the office of the Sub-Registrar, Sarjapura, Bangalore and did not develop the layout as promised nor was any amenities provided for. The project of Fortune KOSMOS is said to have been approved by the BMRDA vide plan sanction approval No.BMRDA/APA/LAO/201/2005-06 in the year 2004. The BMRDA while approving the layout release sites in stages and sites formed in the layout are released in phases as and when the development is complete and after completion of the development activities, the BMRDA release all the sites to the developer. In the instant case, the layout is approved by the BMRDA there is absolutely no development at all and it is beyond comprehension and logic for the complainants to fathom as to how the BMRDA could have approved a layout which is not developed at all. The project Fortune Kosmos Integrated layout has no internal developments also and hence it threadbare demonstrates that the Opposite Parties have suppressed the said fact before obtention of permission and conveyed the plot to the complainant.
3(d). The complainants further submitted that even after three years of entering into the agreement of sale, the Opposite Parties have not provided any of the amenities as promised nor developed the layout in terms of the advertisement/Brochures/ Promises and the agreement of sale dated 29-4-2011. The plots bearing nos.213 and 214 would be of Optimum use only if the basic amenities are provided are. In fact, the complainant cannot even construct house over the same.
3(e). The complainants further submitted that, the agreement of sale dated 29-4-2011, being one for conveyance of the plot as well as development charges, the obligation of the Opposite Parties does not stop by merely selling the plot to the complainants, but continues till the layout is fully developed, more so, when the Opposite Parties have specifically collected a sum of Rs.34,20,000-00 towards development charges. The layout/development had to be completed within period of 18 months and hence the Opposite Parties have blatantly violated the terms and conditions of BMRDA approval.
3(f). The complainants further submits that, the sale price of Rs.43,20,000-00 each case wherein the cost of development have been crystallized. As such the entire contract encompasses the sale prices and the development which cannot be served. It is not a case where the Opposite Parties is conveying only plots to its customers on "as is where is basis", and in the instant case, the value and the attraction of the plot is only because of the amenities/development and the other facilities to be provided by the Opposite Parties hence, the Opposite Parties ought to have complied with its promises and also the terms of the agreement of sale for developing the land and providing the amenities. The Opposite Parties had even offered club house facilities and such other facilities to its customers. The complainants have been directed to pay monthly maintenance charges at the rate of not less than 50 paisa per sq.ft towards up keeping of roads security, garden, electricity charges for common area and water charges as per the agreement. In fact, the complainants cannot be asked to build a house in a layout which has nothing at all.
3(g). The complainants further submitted that, the delay in not providing for the same and the thought of having lost huge sum of money has caused the complainants' grave, mental trauma. In this perspective the Opposite Parties are jointly and severally liable to pay the complainants. The complainants have on innumerable occasion approached the Opposite Parties to complete the development activities as promised. However the Opposite Parties have procrastinated the same on one frivolous ground or the other and save minor development activities the Opposite Parties have not acted in the letter and spirit of the contract. Hence the Opposite Parties are guilty of deficiency of service. The failure of the Opposite Parties to honour its obligation has not only subjected the complainant with agony but has also caused grave distress in their family. Each passing day is causing more pain and anguish to the complainants and their family. The complainants have issued legal notice dated 22-2-2014 to the Opposite Parties regarding the deficiencies committed by the Opposite Parties, the Opposite Party instead of settling the issue has relied on 5-3-2014 making untenable claim. There is not compulsion on the part of the buyer to construct the house within any stipulated time. The only conditions are whenever the buyer decides to construct the house it has to be done only through the Opposite Party. The complainants have paid the entire sale consideration to the Opposite Parties, in fact the Opposite Parties have consistently perpetuated defaults throughout. Hence, these complaints.
4. After service of notice, the Opposite Party Nos. 1 to 4 appeared through their common counsel and filed the version. The Opposite Parties have admitted the averments with respect of booking of villa sites execution of sale agreement dated 21-11-2011, conditions of sale agreement, payment of sale consideration amount, execution of sale dated 8-6-2011 and contended that the complaint is false, baseless and frivolous in nature hence not maintainable either in law or on facts hence, liable to be dismissed. Further the Opposite Parties contended that, there is no deficiency in service and unfair trade practice by the Opposite Parties and further contended that the Opposite Party No.1 is an absolute owner of non agriculture property situated at Gopasandra and Muthanallur villages, Sarjapur hobli, Anekal Taluk, Bangalore Urban District, comprised in Sy.No.23/2. The 1st Opposite Party intending to develop the said property into a layout and under the scheme of development the Opposite Parties would sell individual sites to purchasers. The said individual sites would have to be developed by the individual purchasers in accordance with specifics provided by the Opposite Parties for the purpose of maintaining uniformity of entire layout. The Opposite Parties are responsible for providing external and internal works including water and sanitation, club house, access roads, etc. Further the Opposite Parties contended that the complainants being aware of the scheme of development of the layout also visited the said property and after being satisfied of the same entered into an agreement of sale dated 29-4-2011 with the 1st Opposite Party in and by which the complainants agreed to purchase residential site Nos.213 and 214 measuring 2400 sq.ft each out of Sy.No.23/2 in the said layout for a total sale consideration of Rs.43,20,000/. The Opposite Parties further contended that, other purchasers of the sites have commenced construction of their sites after obtaining necessary approvals, but the complainants have not taken any steps to construction and the Opposite Parties cannot complete construction of certain facilities without the villas being constructed under the agreement of sale there is no time limit for completing the construction of development works. Facilities such as water, electricity, drainage, temporary sanitation with chambers, round the clock (24 hours) security, road net work from the main road to the subject site are ready to be utilized by the complainants and other purchasers. Hence, they are not liable to pay compensation as there is no deficiency of service on their part and prayed for dismissal of complaints against them.
5. The complainants and the Opposite Party No.2 have filed their affidavit evidence. In CC.No.68/2014 the complainant and Opposite Parties have marked the documents as Exs.C1 to C17 and Exs.R1 to R27 and complainant has filed written arguments. In CC.No.71/2014 the complainant and the Opposite Parties have not marked the documents.
6. The complainants filed written arguments in both cases. The Opposite Parties not submitted their arguments.
7. On perusal, the following points will arise for our consideration;
(1) Whether the complaint is deserved to be allowed? (2) Whether the complainants are entitled for the reliefs as sought? (3) What order? 8. The findings to the above points are; (1) In the partly affirmative (2) In the partly affirmative (3) As per the final order :R E A S O N S: Point Nos.1 and 2:-
9. Perused the contents of complaints filed by the complainants, objections of Opposite Parties and affidavit evidence of both parties, we noticed that the complainants have produced documents which are Exs.C1 to C17 and the Opposite Parties has also produced the documents as Exs.R1to Ex.R27, which reveals that the Opposite Parties have entered into an agreement of sale with the complainants on 24-5-2011 by receiving the total consideration amount of Rs.43,20,000-00 in each case with respect to the villa/plot bearing Nos.213 and 214 measuring 2400 sq. ft. each in the layout "FORTUNE KOSMOS" and the same was acknowledged by the Opposite Parties and sale deeds were executed on 8-6-2011 which is also admitted by the Opposite Parties in their objections. The Opposite Parties have admitted that they are responsible for providing external and internal works including water and sanitation, club house, access roads and other facilities such as water, electricity, drainage, temporary sanitation with chambers, round the clock (24 hours) security, road net work from the main road to the sites and these are already to be utilized by the complainants and other purchasers and further stated that without villas being constructed and the residents and occupants occupying the same the core facilities such as party hall, tennis court, swimming pool etc. cannot be constructed. Moreover, other works such as providing business tower, commercial complex, care and services for the elderly can only be provided based on the demand and requirement. As per the allegations of complainants, it is evident that the communication letters with the Opposite Parties, the Opposite Parties have not developed the layout as per terms and conditions of the agreement of sale within specific time. On perusal of the letters communication, up to 2016 the Opposite Parties have not developed the layout and handed over the legal possession of the sites to the complainants. However, the Opposite Parties have produced some photographs on 9-8-2016 and perusing the photographs and the letter communication between the parties, we noticed that the Opposite Parties have provided some facilities in the same layout and same works were going on but it is difficult to us to come to the conclusion that are the said photographs belongs the same layout or not?. The said photographs and documents regarding the development produced by the Opposite Party in 2016. The complainants filed written arguments in complainant no.68/2014 on 21-6-2017 and in complaint no.71/2014 on 31-10-2018 and subsequently from 18-1-2019 the complainants are continuously absent and not argued the matter for denying the photograph also not stated about the current status of legal possession of the sites Nos.213 and 214, the Opposite Party no.2 also not present from 21-2-2018 and not argued the matter. Hence we have no option to believe the contention of the Opposite Party and photographs produced by them that some of facilities are provided in the layout. In the present cases, the sale deeds have been executed in respect of the plot Nos.213 and 214 by sale consideration amount of Rs.43,20,000-00 each and as per agreement to sell, out of this Rs.9,00,000-00 for virgin land (residential site) and Rs.34,20,000-00 towards development charges of the said layout and if there is no any development in the layout the site values are zero. The value of the sites and value of construction of sites are only because of amenities of development. After receiving the full consideration amount towards sites in 2011 and after several requests and letter communications the Opposite Parties have not developed the layout and handover the legal possession of the plots to the complainants within time amounts to deficiency of service and unfair trade practice on the part of Opposite Parties. The Opposite Parties further contended that there is no time limit for complete the development work as per the agreement of sale. However the site purchasers cannot wait for long time for development and developer also cannot keep quite merely after selling the plots without develop the sites/layout. The developer can sale the sites only after developing the layout fully.
10. Considering the facts and discussion made here, we are of the opinion that, it is the Opposite Parties who have undertaken to development works in the said project, what are the development works left out or concerned to the complainants have subsequently stated into complaints to direct the Opposite Parties to take development work of the said layout immediately and complete within six months. So that the complainants will be able to take possession of the site No.213 and 214 purchased by them, we hope the ends of justice would meet. The complainants submitted in their written arguments that, in case the Opposite Parties agree to back virgin sites in their name, the complainants have no objection to transfer the said sites to their name at their own cost and sought for refund of money. However, in our opinion, the complainants are not sought for refund of the amount paid by them for villa plots as because already sale deeds were executed in respect of said plots and if the complainants sought for refund of money they have to cancel the sale deed first and we have no power to cancel the sale deed as per the Consumer Protection Act. Only the remedy to the complainants are to file the proceedings before the competent court to sought for refund of the amount paid by them for villa plots after cancel the sale deed. Accordingly the point No.1 and 2 answered in the partly affirmative. Accordingly, we proceed to pass the following:-
:O R D E R:
The complaints are partly allowed with litigation costs of Rs.25,000-00 in each case to the complainants.
The Opposite Parties Nos.1 to 3are directed to take development works of the said layout immediately and complete the work within six months which works are pending as per the agreement of sale.
The Opposite Parties Nos.1 to 3 are further directed to pay compensation of Rs.1,00,000-00 in each case to the complainants. If failed, the Opposite Parties are directed to pay 9% interest per annum on the above said amount till realization.
The original of this order shall be kept in Complaint No.68/2014 and a copy of same shall be kept in Complaint No.71/2014.
Send a copy of this order to both parties.
Lady Member. Judicial Member. [HON'BLE MR. Ravishankar] PRESIDING MEMBER [HON'BLE MRS. Smt.Sunita Channabasappa Bagewadi] MEMBER