RAJGOPAL S/O SHIVASHANKARRAO, & ORS. vs VENKATESH S/O SHANKAR KUDTARKAR

Challenge in these Revision Petitions under Section 21(b) of the Consumer Protection Act, 1986 (in short, "the Act") is to the common order dated 12.11.2014 passed by the State Consumer Disputes Redressal Commission, Karnataka, Bengaluru, (in short, "the State Commission"), in First Appeal Nos.103/2013, 104/2013, 105/2013 and 106/2013 preferred by the Complainants, respectively. By the impugned order, the State Commission, while concurring with the order of the District Consumer Disputes Redressal Forum, Koppal (in short, "the District Forum"), modified the order by reducing the rate of interest from 10% p.a. to 8% p.a., and confirmed the rest of the order.

Since all these Revision Petitions pertain to common facts and arise out of the common impugned order, they are being disposed of by this common order. For the reasons cited in the applications seeking condonation of delay, delay of 14 days each, in RP 934/2015 RP 935/2015 and 245 days each, in RP 2905/2015 and 2906/2015 is hereby condoned. It is pertinent to note that the Respondent did not chose to file reply to these applications. Having regard to the absence of any objection to the applications for condonation of delay and also keeping in view that the reasons given are satisfactory, the said delay is hereby condoned.

The facts material to the case are that when the Complainant was a minor, his father had taken Membership in the Scheme floated by the Opposite Party as he had attained majority as on the date of filing of the Complaint, in his name. It is averred that in the said Scheme, namely, Sri Shanta Durga Chamundeswari Developers, Gangavathi, in Survey No. 175/W, (Layout in Sy. No.11/C). The total number of plots were 80, measuring 30 x 40 sq.ft. each extending to 1200 s.ft., with 55 installments @ 1,000/- p.m. It is stated that the Membership No. is 24 and the plot allotted is No.23 and the Scheme commenced on 17.06.2006 and closed on 17.12.2010. It is averred that the Complainant had paid 1,000/- p.m., without any defaults, for fourteen months, together with an advance amount of 3,000/- totaling to 17,000/- and thereafter the Opposite Party did not accept any further installments.

It is stated that the conduct of the Opposite Party was also published in the main Newspaper pertaining to the irregularities of the Scheme. Criminal cases were also registered against the Opposite Party. As the payment in lumpsum amount would entail discount of 10% as stated in the fifth Condition of the said Scheme, the Complainant''s father approached the Opposite Party and asked him to receive in lumpsum the remaining amount of 38,000/- which had to be paid in 38 equal installments. The Opposite Party, by giving one reason or the other, postponed the said registration. Thereafter, despite several requests, the Opposite Party refused to register the plot, though, the Complainant''s father offered to pay a further sum of 50,000/-. On 02.06.2010, the Complainant got issued a Legal Notice for which the Opposite Party replied stating that their allotment was cancelled. It is pleaded by the Opposite Party that it is only because of the rise in the value of the plot to 2,50,000/- that the Opposite Party was unwilling to reduce the same. Hence, the Complainant seeking direction to the Opposite Party to get the plot registered with compensation and costs.

The Opposite Party filed his reply before the District Forum admitting to the Membership of the Complainant who was a minor at that point of time and was represented by his guardian, bearing Membership No. 24. He was allotted site No.23. It is averred that if the Members fail to pay installments for three consecutive months, the said allotment would be cancelled. It is only because the Complainant had defaulted continuously for three months, that his allotment was cancelled and that the registration was done to those persons, who have complied with the said Scheme.

Based on the evidence adduced before it, the District Forum, while holding that the claim was time barred, on the ground that the offer to pay the balance sale consideration was made in the year 2008 when the Opposite Party had refused to execute the Sale Deed and the Complaint was filed in the year 2012, directed the Opposite Party to refund the amount of 17,000/- with interest @ 10% p.a., after the expiry of 90 days. It was also observed that the date on which the amount was offered, was not mentioned in any of the records and that the Complainant had failed to establish that he was ready and willing to pay the balance of sale price in a lumpsum before the closure of the Scheme, on 17.12.2010.

Aggrieved by the said order, the Complainants preferred Appeals before the State Commission seeking registration of the site and not for refund of the money and that the closure of the Scheme was on 17.12.2010, whereas, the Complaint was filed within two years of the closure, i.e., on 19.10.2012. The State Commission, while holding that the Complaints lodged in the year 2012 cannot be said to be barred by limitation, as the cause of action also arose on the date of closure of the Scheme, which is, 17.12.2010; concurred with the finding of the District Forum that there was no evidence that the Complainants had offered the balance amount in any lumpsum; reduced the interest rate from 10% p.a. to 8% p.a.

Dissatisfied with the order of the State Commission, the Complainants preferred these revision petitions.

The learned counsel for the Respondent submitted that as the facts were similar to Revision Petition Nos. 1542-1547 of 2011, his arguments in those matters may be considered even in these Revision Petitions. He further submitted that the amounts directed by the lower fora has been deposited before the District Forum. Revision Petition Nos. 1542-1547 of 2011 were preferred against the same Opposite Party in the same Scheme, with the same cause of action and both the District Forum and the State Commission have given a concurrent finding of fact that the Complainants are entitled to the plots allotted as even before the closure of the Scheme, requests were made to the Opposite Party and also Legal Notice was issued. It is also an admitted fact that criminal proceedings are pending against the Respondent/Opposite Party.

The brief point that falls for consideration is, "Whether, there is any deficiency of service on behalf of the Revision Petitioner herein in not allotting the plot to the Respondents/Complainants?".

The facts not in dispute are that the Complainant, in RP 934/2015, which is being taken as a lead case, for the sake of convenience, had paid fourteen monthly installments @ 1,000/- each, with an advance of 3,000/- totaling to 17,000/-, as on 02.11.2007. He was allotted Plot No.23. A Legal Notice dated 02.06.2010 was issued, for which a reply dated 14.06.2010 was given by the Opposite Party.

It is the main case of the Complainant that despite repeated requests, the Opposite Party failed to accept the balance sale consideration and refused to register the plots allotted to them. The terms and conditions mentioned in the Advertisement, read as follows :- "Sri Shantha Durga Chamundeshwari Developers

Terms & Conditions:

The membership fee will be Rs. 50/- only.

80 members are there in this scheme.

The maturity time of the scheme will be 55 months end pay Rs. 1,000/- per month.

They will be paid before the 1 st to 10 th date of every month. Those who are not paying the membership fees it could not in the draw. Those who are the winners they will get the Prizes.

Who are winning numbers of the 10,20,30,40, & 50 the draw they are getting the (30'' X 40'') plots. Further they could not paying the instalment amount.

The 10% discount will be given to the once in payment the amount and the plot will be given to them preferenciably.

The monthly draw will be arranged in our office on 10 th date of 6 p.m before the present members.

The plots will located at Hosalli Road in Sy.No. 11/C of Virupapur Village beside the Manjunathanagar called in the title of "BSS Nagar".

The plot members will be registered in his own expenditure.

Membership will be cancelled without any notice on non-payment of three instalments, amount will be refunded by 25% discount at the time of the Scheme closure.

Electricity works will be completed by the time of the Scheme closure.

If a member likes to book a plot of a choice, he has to pay an amount of Rs.5,000/- 30'' x 40'' site as advance.

This amount will be adjusted in further instalments".

From the aforesaid terms and conditions, it is clear that there are 80 Members in the said Scheme which is contrary to the statement made in the affidavit filed before this Commission. In para 6 of this Affidavit, it is stated as follows :- "I submit that there are total 80 plots in the layout and also 55 members in the Scheme. Hence, the allegation that there are 80 members is not correct and I deny the same. No register produced before District Forum. Out of them 29 members paid the installments regularly, 16 members were defaulters i.e., the present 10 complainants whose Revision Petitions are pending before this Hon''ble Commission, one default Member''s case is pending before the Hon''ble State Commission at Bangalore and five default members have filed criminal cases against me before the Hon''ble Judicial First Class Magistrate, Gangavathi, where I was acquitted, however, the said members filed an Appeal before the District and Sessions Judge, Koppal and the same is pending".

When specifically asked, the learned counsel for the Respondent submitted that there are only 45 Members and hence only 45 Plots and not 80 plots. It is observed from the Complaint that there is a specific pleading with respect to the number of plots and Members being 80, which is not rebutted by the Opposite Party in their Written Version or in their grounds of Appeal before the State Commission. Even in the Legal Notice dated 02.06.2010, got issued by the Complainants, there is a specific allegation that the Scheme has 80 plots and that the Opposite Party is refusing to accept the balance sale consideration and is not registering the plot. Both the lower fora have observed that it is an undisputed fact that the Scheme had 80 plots. Even in the list of dates, before this Commission, it has been stated that there are 80 plots. Keeping in view the material on record and specifically the admitted terms and conditions of the subject Scheme, it is apparent that a false statement has been made in the affidavit with respect to both the number of Members and the number of Plots available. This conduct and attitude of the petitioner/ Opposite Party is deprecated.

It is an admitted fact that the Complainants did not pay the entire sale consideration as stated in their affidavit. It is also their contention that the Opposite Party did not accept the balance sale consideration in one lumpsum despite several requests and issuance of legal notice. It is stated in the Agreement that if the Complainants fail to pay three continuous installments, their Membership will not be put in a monthly draw. For better understanding of the same, a programme of the Standard Agreement, executed in all the cases is reproduced, as under :- " Written Agreement for Giving Scheme plots

The person causing to be written this agreement is, I

Venkatesh Kudtarkar S/o Shankar Kudtarkar, Occ: Estate developers R/o Gangavathi is executing this agreement as under:

I am executing this agreement as per the terms and conditions of the scheme for benefiting you to get this plot in easy instalment which has been caused by me to be developed the layout in our B.S.S. Nagar in manjunath town situated at Veerapura seema in Gangavathi Tq. The plot No. 23 measuring East-West : 30'' North-South : 40'' totally 1200 sq. ft. in this scheme we have to pay every instalment amount at prescribed time. If you failed to make the payment of continuous three installments Your membership number will not be put in a monthly draw.

After the full payment of this scheme amount to me I will executed the registration to you in the presence of under mentioned witnesses and all the expenses have to be borne by you, this written is with my consent and is true.

WITNESS EXECUTANT

Sd/-

(Venkatesh Kudtalkar S/o Shankar Kudtarkar

R/o Gangavathi tq: Gangavathi Dist: Koppal".

In those Revision Petition Nos. i.e., 1542 to 1547 of 2011, it has been observed by both the fora below that cancellation of Membership without issuance of notice, amounts to unfair trade practice and against the principles of natural justice, more particularly, when the clause relating to cancellation of Membership is not a part of the Agreement of Sale, executed in favour of the Complainants . There is no documentary evidence on record to establish that the Opposite Party has registered the plots to all the remaining Members who had paid the installments, regularly.

This Commission had enquired from the Opposite Party on 15.12.2015, if there were any plots available in the said Scheme. A false statement was made by the Opposite Party that no such plots were available. Thereafter, the Complainants by filing application under RTI, found some information that there were only eight plots which were sold and that remaining 72 plots were still available. This Commission vide order dated 15.12.2015, directed the Opposite Party to file an affidavit with respect to the number of plots sold, with copies of the executed Sale Deeds with their respective names and deeds.

In pursuance of the order dated 15.12.2015, an affidavit was filed on 16.05.2016 stating that there are only 45 plots in the Layout which is, absolutely a new plea and that there are only 45 Members in the Scheme, which is contrary to what was pleaded in the Written Version, before the lower fora and also to what was stated in the terms and conditions. In the affidavit, he has stated that only nine Sale Deeds were executed, which evidences that there are balance plots available with the Opposite Party herein and a false statement has been made before this Commission, on 15.12.2015.

In RP No. 935/2015, it is an admitted fact that plot No.37 was allotted to the Complainant and that he had paid 3,000/- on 23.04.2004 and 29,000/- on different dates, the last date of payment being 13.09.2008. The Scheme ended on 17.12.2010. A legal notice was issued by the Complainant''s father on 02.06.2010 for which a reply was received on 14.06.2010. It is pertinent to note that the reply notice has not been filed before this Commission.

In RP 2905/2015, the Complainant was allotted Plot No.36 as seen in the receipts issued and he paid 3,000/- as advance and 29,000/- by 22.09.2008, total being 32,000/-. A legal notice was issued on 02.06.2010 by the Complainant, for which the Opposite Party replied.

In RP No. 2906/2015, the Complainant was allotted Plot No. 38 and she paid 3,000/- as advance and 29,000/- by 17.09.2008, total being 32,000/-. A Legal Notice was issued on 02.06.2010 by the Complainant, for which a reply was received on 14.06.2010. The reply notice has not been filed before this Commission. The Sale Deeds filed before us, are detailed here, as under :-

Date Name of Parties Amount Plot No.

29.06.2010 Venkatesh & Basavaraia 55,000/- Site No. 17

19.06.2010 Venkatesh & Smt. T. Geetha 55,000/- Site No.23

23.12.2007 Venkatesh & Sri Sangappa 55,000/- Site No.15

29.06.2010 Venkatesh & Basavaraia 55,000/- Site No. 17

04.03.2010 Venkatesh & Shri M. Sridhar 50,000/- Site No. 19

04.03.2010 Venkatesh & Shri M. Jhansirani 50,000/- Site No. 20

04.03.2010 Venkatesh & Smt. Kalyanm Jyothi 1,00,000/- Site No. 21 & 22

04.03.2010 Venkatesh & Shri T. Neer 50,000/- Site No. 18

From the above table, it is pertinent to note that three Sale Deeds have been executed after the issuance of legal notice dated 02.06.2010. There is no material placed on record to establish that all plots of the Members who have paid, only have been registered. Out of 80 plots, only 8 sale deeds have been filed before us.

At the cost of repetition, the material on record evidences that the Complainants had made a bonafide attempt to pay the entire balance sale consideration, but the Opposite Party had failed to accept the same in spite of the fact that a legal notice dated 02.06.2010 and the reply notice is dated 14.06.2010, as the Scheme started on 17.06.2006 and ended 55 months thereafter, i.e., on 17.12.2010; that the Opposite Party had made a false statement before this Commission that no plots were available whereas, his own affidavit clearly shows that only 9 plots were sold and 8 sale deeds were filed here. It is pertinent to note that in the copies of Sale Deeds filed herein, the total sale consideration for the plot as on 04.03.2010 was only Rs.50,000/-.

These sites were booked by the Complainants for the purpose of having a shelter over their heads and not for the purpose of earning interest on money paid by them to the Opposite Party. At no stage, did the Complainants give-up their right to take possession.

It is pleaded by the Counsel for the Opposite Party that the amounts which were awarded by the lower fora were deposited with the District Forum, in December, 2015. Needless to say, the Opposite Party is at liberty to withdraw these amounts, with accrued interest, if any. In line with the decision of this Commission in RP Nos. 1542/2011 to 1547/2011, it is directed that and an additional amount of 50,000/- would also be paid to the Opposite Party, taking into consideration the principles of natural justice and balance of equities, this additional 50,000/-, together with balance sale consideration shall be paid within four weeks from the date of receipt of copy of this order and the plots may be registered, within six weeks, from the date of receipt of the amounts. It is pertinent to note that this amount is more than what is reflected in the Sale Deeds executed in 2010 i.e., the same year of the issuance of the legal notice and is, therefore, a very fair and reasonable amount, taking into consideration escalation, if any.

For all the above reasons, these revision petitions are allowed and the orders of the fora below are set aside and the Opposite Party is directed to, register the site, within six weeks from the date of receipt of the amounts, together with costs of 10,000/- to be paid to each of the Complainants by the Respondent/Opposite Party.

In above-mentioned Revision Petition No. i.e., 934/2015, it is stated that at the time of payment of installments, the Complainant was a minor, but at the time of filing of the complaint, he had already attained majority and, therefore, the aforesaid order stands confirmed, against the Complainant in this Revision Petition.