BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 19^th DAY OF DECEMBER 2020

O R D E R

SRI.S.L.PATIL, PRESIDENT

The complainant filed this complaint under Section 35 of Consumer Protection Act, 2019 against Opposite Parties (herein after referred as OPs) with a prayer to direct the OPs to return the entire advance amount of Rs.3,70,000/- with interest at the rate of 18% p.a. from the date of collecting the advance amount to till payment and also liable to pay the damages and legal expenses of Rs.2,00,000/- and also other incidental reliefs in the interest of justice and enquiry. 

2. The brief averments made in the complaint are as under:

  The complainant submits that OP No.1 is the proprietorship and OP No.2 is the Managing Director of OP No.1 and OP No.2 is also developer/builder.  It is further submitted by the complainant that he and OPs are well known and OPs have gave the assurance to him to forming the residential layout called as Anugraha Prerana in consisting of various sites and offered to sell the sites as follows:-

1. Site bearing No.68 measuring East to West 30 ft. and North to South 20 ft. and totally 600 Sq.ft.
2. Site bearing No.69 measuring East to West 30 ft. and North to Souht 20 ft. and totally 600 sq.ft.
3. Site bearing No.70 measuring East to West 30 ft. and North to South 20 ft. and totally 600 sq.ft.
4. Site bearing No.71 measuring East to West 30 ft. and North to South 20 ft. and totally 600 sq.ft.

It is further submitted by the complainant that OPs have offered to sell the four sites for a total consideration of Rs.14,40,000/- and in the meantime he paid the advance amount of Rs.3,70,000/- on different dates as follows:=

1. Rs.10,000/- on 10.03.2018
2. Rs.10,000/- on 29.03.2018
3. Rs.2,00,000/- on 27.04.2018
4. Rs.1,00,000/- on 07.07.2018
5. Rs.50,000/- on 29.08.2018

The balance sale consideration amount of Rs.10,70,000/- shall be payable by the complainant at the time of registration of sale deed.  It is submitted that one site for complainant use and remaining three sites for family member of the complainant not for commercial use.

It is further submits that after paying advance amount of Rs.3,70,000/- to OPs by way of cash and endorsed by OPs goodself and after only OPs have executed the sale agreement in his favour on 05.07.2018, but OPs have not handed over any documents regarding properties till today and mentioning the old date in the sale agreement/assignment agreement. The complainant was asked regarding old date but OPs have told that they have already purchased the stamp paper and also told the said stamp paper is still valued.  It is further submits that the complainant has approached the OPs many time for documents of schedule properties, but OPs have told all the documents gone for conversion, but till today Ops have not given any documents regarding the sites.  It is further submitted by complainant that he visited the schedule properties and shocked because of till today there any sites were not formed in the layout.  Thereafter, the complainant was applied for RTC, mutation registrar etc., and shocked because of the said land is Gomala land and same land cannot be transferred from owner to any one till 15 years from the date of order dated 31.03.2005 passed by the Tahsildhar, Bengaluru South Taluk in LNDR U CR 14-1998-99 and same was entered in mutation dated 23.07.2005.

It is submitted that after enquired, Siddappaji and others have not an absolute owners of the said land to the extent 6 Acres and 28 Guntas and 209 Acres 0.5 Guntas in the same Sy.No.145 of Neaguli Village, Uttarahalli Hobli, Bengaluru South Taluk in the recent RTC/Phani and Mutation. But OPs have till today not obtained the registered sale deeds from the original owners, conversion order and approved layout plan etc., as per their promise, which cannot be done also and till today OPs have not supplied the schedule properties documents amounts to deficiency of service and it shows their negligence/careless.  Finally complainant issued legal notice to the Ops on 04.11.2019 by RPAD as well as RP, calling upon the OPs to pay the amount due with interest and damages.  The said notice was served to OPs on 09.11.2019 and Ops have given untenable and evasive reply through their counsel on 21.11.2019 and in the said reply notice, OPs have admitted and ready to return only advance amount to complainant but seeking time for three months, but till today OPs have not paid any amount.

The cause of action for the case arose on 05.07.2018 when the OPs have executed the sale agreement/assignment agreement, issued legal notice to OPs through RPAD on 04.11.2019 and same was served on 09.11.2019 and reply given by OPs dated 21.11.2019.  The act of OPs amounts to extreme deficiency in service.  Hence, this complaint is filed.    

 3. After admitting the complaint, notice was ordered to issue to the OPs, OPs appeared and filed vakalath but not filed version.

4. Complainant has tendered his evidence by way of affidavit.  He has also produced documents in support of his case and marked Ex.A.1 to A.9.  The complainant has filed his written arguments.

5. Heard the learned counsel for the complainant.
6. The points that arise for our consideration are:

1.  Whether the Complainant prove the deficiency of service on the part of OPs, if so, entitled for the relief sought for?
2. What order?

  7.  Our answers to the above points are as under:

       Point No.1:  Partly in the affirmative.

      Point No.2:  As per the final order for the following

REASONS

7. Point No.1:  In this case, we have stated above OPs have appeared but not filed version. Under such circumstances, non-filing of version can be drawn an adverse inference that, the OPs have admitted the claim of the Complainant in the light of the decision reported in 2018 (1) CPR 314 (NC) in the case of M/s Singla Builders & Promoters Ltd., vs. Aman Kumar Garg, wherein it is held that,

“Non-filing of written version to complaint before the forum, amounts to admission of the allegations levelled against them in consumer complaint”.

8. According to the case of the complainant so far he has already paid an amount of Rs.3,70,000/-, OPs are not in a position to get registered the regular sale deed.  Even on repeated requests that OPs postponing the registration process by one or the other pretext.   According to the case of the complainant that itself amounts to deficiency of service much less the unfair trade practice.  In this context, we place the reliance on the decision reported in EMAAR MGF Land Ltd., & Anr. V/s Amit Puri, II (2015) CPJ 568 (NC) wherein it was held that, after the promised date of delivery of possession, if the project is not completed, the discretion lies with the Complainant whether he wants to take delivery of possession or seeks refund of earnest money.  Since the project was not materialized, under such circumstances, the OPs are bound to return the said amount to the complainant since there is deficiency of service much less the unfair trade practice on the part of OPs. 

9. The complainant in his affidavit submits that OPs have sell four sites in Anugraha Prerana layout for total consideration amount of Rs.14,40,000/- for which he paid advance amount of Rs.3,70,000/- and balance sale consideration amount of Rs.10,70,000/- shall be payable at the time of registration of sale deed.  Even after complainant paid advance amount till today OPs have not handed over any documents regarding properties. It is further submitted by complainant that he visited the schedule properties and shocked because of till today there any sites were not formed in the layout.  Thereafter, the complainant was applied for RTC, mutation registrar etc., and shocked because of the said land is Gomala land and same land cannot be transferred from owner to any one till 15 years from the date of order dated 31.03.2005 passed by the Tahsildhar, Bengaluru South Taluk in LNDR U CR 14-1998-99 and same was entered in mutation dated 23.07.2005. It is submitted that after enquired, Siddappaji and others have not an absolute owners of the said land to the extent 6 Acres and 28 Guntas and 209 Acres 0.5 Guntas in the same Sy.No.145 of Neaguli Village, Uttarahalli Hobli, Bengaluru South Taluk in the recent RTC/Phani and Mutation. But OPs have till today not obtained the registered sale deeds from the original owners, conversion order and approved layout plan etc., as per their promise, which cannot be done also and till today OPs have not supplied the schedule properties documents amounts to deficiency of service and it shows their negligence/careless.  In this context, complainant has demanded to refund the advance amount paid by him with interest. Hence, we do not find any legal impediment to allow this complaint as there was delay on the part of the OPs in commencing the project and execute the sale deed though substantial amount has been paid by the complainants, in this context we place reliance on the decision, reported in 2019 (1) CPR 650 (NC) in the case of Pradeep Kumar Gupta and Ors. vs. Ireo Grace Realtech Pvt. Ltd., wherein it is held that:

Consumer Protection Act, 1986 – Sec.14(1)(c) & (d) and 21–Real estate – Booking of residential flats by Complainants – Case of complainants is that not only possession of apartments was not offered to them, even construction is not complete despite they having made substantial payment to OP – If a builder fails to deliver possession of flat/plot booked with him, within time period committed for this purpose and is unable to justify the said delay, this would constitute defect or deficiency in service rendered by him to buyer and in such a case, this Commission, in exercise of powers conferred upon it by Section 14(1) (c) & (d) of Consumer Protection Act would be competent to direct refund of amount paid by buyer to builder, along with appropriate compensation for loss or injury suffered by buyer due to defect/deficiency in services rendered to him by builder-In all consumer complaints, opposite party shall refund entire principal amount received from complainants along with compensation in form of 10% simple interest- OP shall also pay sum of Rs.25,000/- as cost of litigation in each complaint.

10. In the light of the decision, we come to conclusion that the very conduct of the OPs certainly amounts to grave deficiency of service.  This act of OPs must have put the complainant to great hardship, inconvenience and mental agony.  Hence, we are of the considered view that OPs have to be directed to refund the admitted advance amount of Rs.3,70,000/- to the complainant together with interest @ 10% p.a. by way of compensation for having caused mental agony, hardship and deficiency of services with litigation cost of Rs.5,000/- to both complainants. Accordingly, Point No.1 is answered Partly in Affirmative.

11. Point No.2:  In the result, we pass the following:     

O R D E R

1. The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 are allowed in part. 
2. The OP Nos.1 and 2 are jointly and severally directed to refund a sum of Rs.3,70,000/- (Rupees three lakhs seventy thousand Only) with interest @ 10% p.a. in the form of compensation to the complainant from the date of periodical payment till its realization, together with cost of litigation of Rs.5,000/- to the Complainant.
3. We also direct the OPs to realize the above said amounts to the Complainant within four weeks from the date of receipt of this order, failing which the Complainant is at liberty to have the redress as per law.
4. Furnish free copy of this order to both the parties            

 (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Commission on this 19^th day of December, 2020).

List of documents produced by the complainant marked as Ex.A.1 to A.22 are as follows:-