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

DATED 28^TH DAY OF OCTOBER 2024

COMPLAINT No.144/2024

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. Direct the OP to receive the balance sale price of Rs.2,80,000/- and to allot site in favour of the complainant bearing site No.65 and 66, each measuring 30X20 feet, situated at Anugraha Prerana, Nelaguli Village, Uttarahalli Hobli, Bangalore South taluk.
2. In the alternative direct the OPs to refund the advance amount of Rs.2,80,000/- with interest at 18% p.a., from 07.09.2018 to the date of payment.
3. Award Rs.50,000/- by way of damages towards the mental agony.
4. Award Rs.10,000/- towards litigation expenses.
5. And grant such other relief as this commission deems fit.

2. The case set up by the complainant in brief is as under:-

The OPs being the developers, having developed residential layout known as Anugraha Prerana, in the land situated at Nelaguli Village, Uttarahalli Hobli, Bengaluru South Taluk.

3. The complainants are the legal heirs of late R.Gopala Krishna. The deceased was in need of residential site approached the OPs and entered into an Assignment Agreement on 15.10.2018 and he died interstate on 31.12.2023, leaving behind the complainants as his legal heirs. The deceased agreed to purchase the site No.65 and 66, each measuring 600 sq.feet for a total consideration of Rs.4,80,000/- and he has paid an amount of Rs.2,00,000/- as advance.  Though the OPs have agreed to execute and register the sale deed by receiving the balance sale consideration of Rs.2,80,000/- and execute and register the sale deed within 12 to 18 months from the date of assignment agreement have not executed and registered the sale deed inspite of repeated demands and by sending request letters.

4. The OPs have sent letters have promised to execute the sale deed and they have specifically agreed to execute the sale deed before December 2023 failing which agreed to return the advance amount.  When the OPs have failed to execute the sale deed the complainant got issued legal notice on 05.02.2024.  Inspite of service the OPs neither replied to the notice nor complied to the demands of the complainant. Hence this complaint is filed.

5. After issue of notice OPs appeared and filed their version. It is the case of the OPs that the complaint filed by the complainant is not maintainable either in law or on facts.

6.  The OPs have admitted that they have entered into assignment agreement with the complainant and further agreed that as per the agreement they have to execute the registered sale deed in respect of the site. The total sale consideration amount is Rs.4,80,000/- and the deceased R.Gopala Krishna has paid an amount of Rs.2,00,000/-.

7. The OP further admitted that as per the terms of the agreement they have agreed to execute and register the sale deed within 12 to 18 months though the deceased has not personally met and requested the OP to receive the balance sale price of Rs.2,80,000/- and to execute and register the sale deed. They have sent the letter agreed to execute the sale deed failing which agreed to repay the advance amount.  Even today they are ready to return the advance amount, but the complainants and the deceased has not come forward. Hence OP prayed for dismissal of the complaint.

8. The complainant has filed her affidavit evidence and relies on 11 documents.  OPs have also filed their affidavit evidence but not filed any documents.

9. Heard the arguments of the complainant and perused the written arguments and documents filed by both the parties.

10. The following points do arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OPs?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

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

       Point No.1:  Affirmative

      Point No.2 : Party Affirmative

      Point No.3 : As per final orders

REASONS

12. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version, affidavit evidence and written arguments filed by both the parties. 
13. The first complainant filed his affidavit evidence and relied on Ex.P1 to P11. Ex.P1 is the copy of the assignment agreement, Ex.P2 to 5 are the copies of letter correspondences, Ex.P6 is the copy of the notice dated 05.02.2024 and Ex.P7 is the copies of the postal receipts and Ex.P8 is the copy of the postal acknowledgements, Ex.P9 is the Death certificate, Ex.P10 is the copy of the Family Tree Affidavit, Ex.P11 is the copy of Attestation of Family Tree.

14. On the other hand OPs have also filed their affidavit evidence but not submitted any documents.  
15. It is undisputed fact that the OPs being the developers have entered into assignment agreement with the husband of the first complainant on 15.10.2018 and agreed to sell Site No.65 and 66, each measuring 600 sq.feet, situated at the layout called Anugraha Prerana in the land situated at Nelaguli Village, Uttarahalli Village, for a total consideration amount of Rs.4,80,000/-.  

16. It is also undisputed fact that the late husband of the first complainant has paid a sum of Rs.2,00,000/-.  The Ops have agreed to execute and register the sale within 12 to 18 months from the date of assignment agreement. 

17. Even though the complainant has requested the OPs to receive the balance sale price of Rs.2,80,000/- and to execute and register the sale deed they have not come forward to execute the registered sale deed.  Even though the OPs have sent three letters to the complainant stating that they will execute the registered sale deed within December 2023 failing which they will return the advance amount.  When the OPs have failed to refund the advance amount the complainant has got issued legal notice as per Ex.P6. Inspite of service of the same the OPs have not complied with the demands of the complainant.

18. The main grievance of the complainant is that even though husband of the first complainant has paid the advance sale consideration to the OPs in the year 2018 itself but the OPs still have not executed and registered the sale deed and they are postponing the registration of the site and harassing this complainant without either refunding the amount or registering the site and thereby they have committed deficiency of service and they are making unfair trade practice on their part.  

19. On the other hand the main contention taken by the OPs is that they are agreed to execute the registered sale deed within 2023 on failure they will refund the amount to the complainant.  The deceased/complainants has not come forward to receive the advance amount.  

20.   When the OP have never come forward to refund the amount on failure to execute and register the sale deed the complainant has forced to file this complaint.  If the OPs are not ready to execute and register the sale deed they would not have received the advance amount from the complainant. The OPs have simply collected the amount without forming any layout and without allotting any site by executing the false assignment agreement and thereby committed deficiency of service and unfair trade practice on their part.  
21. Even though the OPs have examined their witness have not at all produced any document to show that they are ready to execute and register the site in favour of the complainant after received the entire amount or they will refund the advance amount.

22. Under these circumstances, we feel it is necessary to allow this complaint directing the OP to refund the amount of Rs.2,00,000/- with interest @ 9% pa., from the date of respective payment till the realization of the amount.  The complainant is also entitled for litigation cost of Rs.20,000/-.  Hence we answer point No.1 in the affirmative and point No.2 party in the affirmative.

23. Point No.3:- In view the discussion referred above the complaint is liable to be allowed hence we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OP is directed to refund Rs.2,00,000/- with interest at 9% p.a., from the date of respective payment till realization to the complainant.
3. OP is further directed to pay Rs.20,000/- to the complainant towards litigation expenses.
4. The OP shall pay this amount within three months from the date of this order in default to pay interest @ 12% p.a., on Rs.2,00,000/- from the date respective payment till realization.
5. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 28^TH day of OCTOBER 2024)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;

NIL