Dealing with the first point of Limitation first, this point has been very comprehensively dealt with in the order passed by the District Forum. It is not in dispute that till date neither possession has been given nor the money has been refunded as demanded by the complainants from the petitioner, hence as rightly held by the District Forum, the cause of action continues and we are in full agreement with this. Since this was a continuous cause of action in the above facts and circumstances, it cannot be said to be barred by limitation.
1. Petitioner was the opposite party before the District Forum where the respondents had filed complaint alleging deficiency in service.
2. Brief facts of the case are that the respondents, separately, through an agreement with the petitioner decided to purchase the land measuring 6000 sq. ft. in each case. In the case of R.P. No. 2782/2004, the respondent/ complainant had paid Rs. 1,21,000/- against the total price of Rs. 1,92,000/- and in the case of RP No. 2783/2004, the respondent/complainant had paid Rs. 1,85,000/- against the total price of the plot at Rs. 1,92,000/-. When the possession of these plots were not delivered, two separate complaints came to be filed before (ho District Forum, who allowed the complaints and directed the petitioner of refund the money along with interest @ 12% p.a. and a cost of Rs. 5,000/- in each case.
3. Aggrieved by this order an appeal was filed by the petitioner before the State Commission, who after hearing the parties dismissed the appeals hence these revision petitions before us.
4. The respondent remained absent despite notice, hence proceeded ex parte.
5. We heard the learned Counsel for the petitioner and perused the material on record, Since the facts of the case are the same and point of law involved in both the cases is same, we go on to pass a single order in these two revision petitions.
6. The agreement is not disputed. The receipt of money in both the revision petitions is not in dispute. Mainly there are two grounds taken by the petitioner challenging the order passed by the District Forum, one is with regard to the 'Limitation' and the other is with regard to the Clauses 7, 8 and 9 of the agreement.
7. Dealing with the first point of Limitation first, this point has been very comprehensively dealt with in the order passed by the District Forum. It is not in dispute that till date neither possession has been given nor the money has been refunded as demanded by the complainants from the petitioner, hence as rightly held by the District Forum, the cause of action continues and we are in full agreement with this. Since this was a continuous cause of action in the above facts and circumstances, it cannot be said to be barred by limitation.
8. Coming to the second point, Clause Nos. 7 and 8 of the agreement are reproduced below :
"7. The vendor and the purchaser shall respectively obtain all such statutory clearances, permissions and sanctions as applicable to complete the sale transaction.
8. In the event of a breach of this agreement by the Vendor or of his inability to perform his obligations under this agreement, the purchaser shall be entitled to a refund of the amount paid as the price, till date of such breach with interest paid as the price, till date of such breach with interest thereon at the prevailing bank rate of interest. Impossibility of performance on account of an act of God or Statutory impediments shall not be construed as a breach on the part of the Vendor. In the event of a breach of this agreement by the Purchaser, the amount of money paid by the Purchaser as the price till such date shall stand forfeited and the contract shall stand terminated. A continuous default in payment of the instalments prescribed, for three consecutive months, shall be construed as a breach."
9. After going through the material on record we find that the agreement is signed on 15.4.1996. Before that date, the Bangalore Metropolitan Region Development Authority (BMRDA) had already issued a notification in March, 1996 reference of which is available at page 27 of the paper book. This notification laid the terms for development of certain areas and the petitioner was clearly warned that they are developing these areas (Cantbury Castle) which is violative of this notification. The important point is this Notification is dated 15.3.1996 and the agreement is dated 15.4.1996. The petitioner in these circumstances being a developer should have been familiar with the law and regulation on the subject. The deduction will be that despite knowledge of this Notification and now wishing to take sh er under Clause 8 of the agreement, will not help him as the terms of notification and the associated restrictions should have been within his knowledge. In any case, as we see by an unsigned document filed before us, what has happened is that as a result of notification instead of 85% of the land being available, the availability now is 50% of the land as the rest is earmarked for common amenities. This cannot be said to mean an act of God or a statutory impediment. Any statutory impediment in the facts and circumstances narrated above, should have been within the knowledge of the petitioner. This is not a subsequent development for which he can plead ignorance. The notification preceded the signing of the agreement. In our view, Clause 8 of the agreement does not help the petitioner at all.
10. Last ditch plea appears to be of the application of Clause 9 of the agreement, that is, reference of the dispute to an Arb ator, in case any dispute between the parties arises. This point has been very ably dealt with by the District Forum in its order and indorsed by the State Commission. We are in full agreement with that. Section 3 of the Consumer Protection Act provided additional remedy and relief in view of which the Clause 9 loses its significance.
11. A weak plea has also been taken that the complainants were not paying instalments in time, hence they were at fault so that the possession could not be delivered. This contradicts their own conduct. As late as 1998, the petitioner offered an alternative plot away from the original plot, which was not acceptable. No person keeps on paying the money when they see no development, no action on the part of the developer, in this case, the petitioner. Money does not grow on the trees for the complainants, for which they will keep giving the money to the petitioner, in the case, even when they see no development on the ground. We see no merit in this plea as well.
12. In. view of above discussion, we see no merit in the revision petitions filed before us and what has been directed is to refund the deposited: amount with interest @ 12% p.a. which has been held to be just and equitable by the Hon'ble Supreme Court in series of judgments.
13. In view of above, we see no infirmity in the order passed by the District Forum and affirmed by the State Commission. These revision petitions are devoid of merit, hence are dismissed.
Consumer Disputes Redressal Commission
Juliet V. Quadros vs Malti Kumar And Ors. on 7 December, 2004
Equivalent citations: IV (2005) CPJ 51 NC
Bench: K G Member, B Taimni
1. Petitioner was the opposite party before the District Forum where the respondents had filed complaint alleging deficiency in service.
2. Brief facts of the case are that the respondents, separately, through an agreement with the petitioner decided to purchase the land measuring 6000 sq. ft. in each case. In the case of R.P. No. 2782/2004, the respondent/ complainant had paid Rs. 1,21,000/- against the total price of Rs. 1,92,000/- and in the case of RP No. 2783/2004, the respondent/complainant had paid Rs. 1,85,000/- against the total price of the plot at Rs. 1,92,000/-. When the possession of these plots were not delivered, two separate complaints came to be filed before (ho District Forum, who allowed the complaints and directed the petitioner of refund the money along with interest @ 12% p.a. and a cost of Rs. 5,000/- in each case.
3. Aggrieved by this order an appeal was filed by the petitioner before the State Commission, who after hearing the parties dismissed the appeals hence these revision petitions before us.
4. The respondent remained absent despite notice, hence proceeded ex parte.
5. We heard the learned Counsel for the petitioner and perused the material on record, Since the facts of the case are the same and point of law involved in both the cases is same, we go on to pass a single order in these two revision petitions.
6. The agreement is not disputed. The receipt of money in both the revision petitions is not in dispute. Mainly there are two grounds taken by the petitioner challenging the order passed by the District Forum, one is with regard to the 'Limitation' and the other is with regard to the Clauses 7, 8 and 9 of the agreement.
7. Dealing with the first point of Limitation first, this point has been very comprehensively dealt with in the order passed by the District Forum. It is not in dispute that till date neither possession has been given nor the money has been refunded as demanded by the complainants from the petitioner, hence as rightly held by the District Forum, the cause of action continues and we are in full agreement with this. Since this was a continuous cause of action in the above facts and circumstances, it cannot be said to be barred by limitation.
8. Coming to the second point, Clause Nos. 7 and 8 of the agreement are reproduced below :
"7. The vendor and the purchaser shall respectively obtain all such statutory clearances, permissions and sanctions as applicable to complete the sale transaction.
8. In the event of a breach of this agreement by the Vendor or of his inability to perform his obligations under this agreement, the purchaser shall be entitled to a refund of the amount paid as the price, till date of such breach with interest paid as the price, till date of such breach with interest thereon at the prevailing bank rate of interest. Impossibility of performance on account of an act of God or Statutory impediments shall not be construed as a breach on the part of the Vendor. In the event of a breach of this agreement by the Purchaser, the amount of money paid by the Purchaser as the price till such date shall stand forfeited and the contract shall stand terminated. A continuous default in payment of the instalments prescribed, for three consecutive months, shall be construed as a breach."
9. After going through the material on record we find that the agreement is signed on 15.4.1996. Before that date, the Bangalore Metropolitan Region Development Authority (BMRDA) had already issued a notification in March, 1996 reference of which is available at page 27 of the paper book. This notification laid the terms for development of certain areas and the petitioner was clearly warned that they are developing these areas (Cantbury Castle) which is violative of this notification. The important point is this Notification is dated 15.3.1996 and the agreement is dated 15.4.1996. The petitioner in these circumstances being a developer should have been familiar with the law and regulation on the subject. The deduction will be that despite knowledge of this Notification and now wishing to take sh er under Clause 8 of the agreement, will not help him as the terms of notification and the associated restrictions should have been within his knowledge. In any case, as we see by an unsigned document filed before us, what has happened is that as a result of notification instead of 85% of the land being available, the availability now is 50% of the land as the rest is earmarked for common amenities. This cannot be said to mean an act of God or a statutory impediment. Any statutory impediment in the facts and circumstances narrated above, should have been within the knowledge of the petitioner. This is not a subsequent development for which he can plead ignorance. The notification preceded the signing of the agreement. In our view, Clause 8 of the agreement does not help the petitioner at all.
10. Last ditch plea appears to be of the application of Clause 9 of the agreement, that is, reference of the dispute to an Arb ator, in case any dispute between the parties arises. This point has been very ably dealt with by the District Forum in its order and indorsed by the State Commission. We are in full agreement with that. Section 3 of the Consumer Protection Act provided additional remedy and relief in view of which the Clause 9 loses its significance.
11. A weak plea has also been taken that the complainants were not paying instalments in time, hence they were at fault so that the possession could not be delivered. This contradicts their own conduct. As late as 1998, the petitioner offered an alternative plot away from the original plot, which was not acceptable. No person keeps on paying the money when they see no development, no action on the part of the developer, in this case, the petitioner. Money does not grow on the trees for the complainants, for which they will keep giving the money to the petitioner, in the case, even when they see no development on the ground. We see no merit in this plea as well.
12. In. view of above discussion, we see no merit in the revision petitions filed before us and what has been directed is to refund the deposited: amount with interest @ 12% p.a. which has been held to be just and equitable by the Hon'ble Supreme Court in series of judgments.
13. In view of above, we see no infirmity in the order passed by the District Forum and affirmed by the State Commission. These revision petitions are devoid of merit, hence are dismissed.
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