ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in not executing and registering the sale deed in her favour and for registering the same along with the car parking area and for Rs.1,00,000/- as compensation for the deficiency in service and for Rs.1,00,000/- for causing mental stress, strain agony and for other reliefs as the Commission deems fit.

2.      The brief facts of the complaint are that;

The complainant agreed to purchase a residential apartment bearing No.349 along with one car parking area totally measuring 666 sq. feet constructed by OP1 in the apartment known as DS MAX Skylish and the property was fully described in the B schedule of the sale agreement entered into between her and OP1.  The total sale consideration was Rs.18,82,700/-.  Complainant paid Rs.1,00,000/- on 03.10.2017 and Rs.88,270/- on 22.10.2017, and Rs.15,24,987/- on 06.12.2017, by obtaining housing loan from her bank.  The balance of sale consideration to be paid to the OP1 was Rs.1,69,443/-. There was no communication from OP1 regarding execution and registering the sale deed.  Hence she visited the head office of the Op1.  While OP1 came forward to execute and register the sale deed, she was informed by OP1 that car parking will not be provided and dragged on the proceedings unnecessarily, though in the C schedule of the sale agreement it was mentioned that the said sale consideration also includes for the covered car parking area.  The agreement of sale was executed on 23.10.2017. Hence she had to issue legal notice on 12.11.2018 demanding OP1 to execute and register the sale deed.   

3.      Since OP1 did not execute and register the sale deed and hand over the same to her she could not hand over the same to the bank who has financed the housing loan and the bank was insisting for the same.  OP1 is bound to perform his contractual obligation and she is bound to pay the balance of sale consideration to get the sale deed executed in her favour.  Since there is a delay in executing the sale deed and putting her possession of the property, she was forced to pay rent at Rs.20,000/- pm., till she obtained the possession of the property, which is due to the deficiency in service on the part of OP1, which also put her under mental stress and strain for which OP1 is bound to compensate by paying Rs.1,00,000/- as damages.  She has written several emails to OP1.  Though she has paid substantial amount towards sale consideration, even after lapse of one year seven months, OP did not execute and register the sale deed and handed over the possession of the same. She was ready and willing to pay the balance of sale consideration of Rs.1,69,443/- whereas since OP1 failed to execute the sale deed including that of the car parking area, OP1 is responsible for the delay.  She had to pay the EMI as agreed and also the rent for the house in which she was living due to non-registration of the sale deed.  

4.      The cause of action for the complaint arose on 23.10.2017 when she entered into sale agreement with OP1 and on 06.12.2017 when they entered to tripartite Agreement and on 12.11.2018 when OP1 received substantial sale consideration and also on 24.08.2019 when she issued a legal notice to OP1 and hence the complaint.

5.      Upon the service of notice, OP1 appeared on its behalf and also on behalf of OP2 to 5 as GPA holder before the Commission and filed its version contending that the complaint filed is with mixture of malafide intention to drag on the proceedings and process of law and hence liable to be dismissed.  

6.      It is contended that OP1 was always ready and willing to execute the sale deed in favour of the complainant and since the complainant raised the car parking issue it was got delayed by the complainant herself.  Hence on this ground the complaint is liable to be dismissed.

7.      It is further contended that it has constructed the residential apartment with common car parking slot.   Complainant requested for a big car parking.  Under such circumstances, it was not possible for its to provide a bigger area for car parking as requested by the complainant.  On this score itself the complaint is not maintainable. This complaint is filed to drag on the proceedings and did not pay the remaining balance of sale consideration amount though it called the complainant several times to get it registered.  Due to the issue in car parking area complainant herself delayed in getting the sale deed registered and demanded for alternate car parking and now OP1 has provided an alternate bigger car parking area to the complainant.  Inspite of it complainant has not responded to come forward to get the sale deed executed and registered. Hence there is no deficiency in service on its part.  It is the duty of the complainant to pay the balance of sale consideration and get it registered. Since she has failed to do it, there is no deficiency in service on its part and prayed to dismiss the complaint.

8.      In order to prove the case, both the parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

9.     Our answers to the above points are:-

POINT NO.1:            In the Affirmative

POINT NO.2:            Partly in the affirmative.

                                For the following.

REASONS

10.   POINT No.1 AND 2:-

   Perused the complaint, version, affidavit evidence and the documents produced by respective parties.  It is not in dispute that the complainant paid substantial amount towards the sale consideration to OP1 in order to purchase flat No.349 measuring 666 sq. feet along with a covered car parking.  

11.   According to her own contention, she was to pay Rs.1,69,443/- towards the balance of sale consideration.  The contention of the complainant is that, OP1 did not come forward to execute and register the sale deed including the car parking area, for which she refused to get it registered.

12.   Ex.P1 the Sale Agreement, B schedule is mentioned as undivided share in A schedule property and C schedule is mentioned as Flat bearing 349 in III Floor, containing one bed room, kitchen, dining, toilet, living room with one car parking bearing No.349 and the super built up area measuring 666 sq. feet if the apartment known as “DS MAX Skylish.” This property was agreed to be sold by OP1 to the complainant for Rs.18,82,700/-. As contended, there was many correspondences and notices issued between the parties.  In one of the letters sent by OP1 it has requested the purchasers of the flats in the apartment to get the khata changed to their name.  

13.   During the pendency of this complaint, negotiation was held and OP1 executed the sale Deed as per Ex.R1 on 18.09.2020 including the car parking area measuring 8 feet width and 15” length, clearly mentioning the boundaries i.e., to the North car parking area of Flat No.336, to the South Drive way to the east Electrical panel board and west car parking area of flat No.331.  

14.   OP has produced Ex.R2, 3 and 4 stating that the property purchased by persons in respect of flat No.131, 132, 329 were handed over possession on 24.01.2018, 15.04.2018 and 27.05.2018 to show that the house property or the flats were ready for handing over possession and after the said persons taking possession of the flats issued Ex.R2, 3 and 4.  He want to drive the point that he was not at fault as the flat was ready to be handed over to the purchasers and since in this case the complainant herself did not come forward to pay the balance of sale consideration and raised the issue of car parking, execution of the sale deed got delayed.  Even on September 21^st 2020, OP1 has written a letter through email requesting the complainant to visit the office to complete the formalities of taking possession, for which she asked some details dated 25^th September 2020.

15.   When all these facts and circumstances are taken into consideration, the delay in handing over the possession of the property and executing and registering the documents and the complainant paying the balance of sale consideration squarely lies on both the parties.

16.   Since the absolute sale deed was executed on 18.09.2020 the day on which complainant has come forward to pay the balance of sale consideration, and the possession of the same was handed over within a matter of 10 to 12 days, then after, we are of the opinion that there is no deficiency in service on the part of OP.  However, since due to the difference between the parties, the complainant was made to approach this forum seeking redressal and for having suffered mentally for all these days after paying the substantial amount out of the sale consideration, we are of the opinion that a sum of Rs.10,000/- towards damages for the sufferings and Rs.5,000/- towards litigation expenses if OP1 is ordered to pay to the complainant would meet the ends of justice. Hence we answer point No.1 and 2 partly in the affirmative and pass the following;

ORDER

1. Complaint is allowed in part with cost.
2. OP1 is directed to pay a sum of Rs.10,000/- towards damages and Rs.5,000/- towards litigation expenses to the complainant.
3. All the other prayers of the complainant is hereby dismissed.
4. The OP is further directed comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 16^TH DAY OF APRIL 2021)

MEMBER                                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the Sale Agreement

Ex P2: Tripartite Agreement

Ex. P3: Copy of the legal notice

Ex P4: Postal acknowledgement

Ex P5: Bank loan details

Es P6: Account details

Ex P7: Email correspondences

Ex P8: The account statement issued by my banker SBI for the period 2018, 2019 and 2020

Ex P9: Receipts for having paid the rent(33 Nos.)

Ex P10: Payment details in respect of the legal fee paid.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri.Shivashankar Chikkeri, Authorised signatory

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the absolute Sale Deed

Ex R2: Three Possession letter in respect of the three flats

Ex R3: Email correspondences.

MEMBER                                        PRESIDENT