BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 10th of January 2011
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.270/2010
(Admitted on 08.10.2010)
Sri. B.K. Sathish Yadapadithaya,
So. Late Sri.B.K. Yadapadithaya,
Advocate, aged about 40 years,
RA. Flat No.103, Amaravathi Apartments,
Arya Samaj Road,
Mangalore 3. …….. COMPLAINANT
(Advocate for the Complainant: Sri.Sanjay D).
VERSUS
Dr.K.R. Bhat,
So. Late K.Narayan Bhat,
Aged about 62 years,
Providence, Kodial Guthu West,
Mangalore 575 003. ……. OPPOSITE PARTY
(Advocate for the Opposite Party: Sri.K.S. Udayanarayana).
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs.
The brief facts of the case are as under:
It is submitted that, the mother of the Complainant sold her immovable property mentioned in Schedule ‘A’ of the complaint as per Sale Deed dated 22.06.1995. Out of the agreed price of Rs.20,15,000/-, a sum of Rs.12,75,000/- was set off as price for one flat of 3 bedrooms to be provided by the Opposite Party to the mother of the Complainant which is described in the schedule ‘B’ of the complaint.
The Opposite Party also entered into a construction agreement with the Complainant’s mother dated 07.04.1995. It was agreed in that agreement that by virtue of the terms of the Sale Deed dated 22.06.1995 the Complainant’s mother would become the owner of the flat upon its completion. The Opposite Party has to perform the service of the construction of the flat and bring about lawful ownership of the sale in favour of the mother of the Complainant. The flat premises was constructed by the Opposite Party and handed over to the mother of the Complainant in the year 1999. Since then the Complainant along with his mother was in possession and enjoyment of the flat premises.
It is stated that, on 27.09.2004 the mother of the Complainant expired and she has executed and got registered a WILL dated 18.09.2003 bequeathing the flat premises to the Complainant. The Complainant in order to get the flat in his name as per the WILL of his mother orally requested the Opposite Party to execute Sale Deed/Deed of Apartment in his favour but the Opposite Party failed to do the same. Hence the Complainant issued a legal notice dated 30.04.2010 calling upon the Opposite Party to execute a Sale Deed but the same has been failed, hence the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to execute the Deed of Apartment in respect of ‘B’ schedule property along with proportionate undivided interest in the ‘A’ schedule property in favour of the Complainant in accordance with law and accordingly give No objection Certificate of Consent Letter to transfer the Electricity Meter, Katha and Door Number in favour of the Complainant.
2. Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version admitted the agreement dated 10.04.1999 between the Opposite Party and the Complainant’s deceased mother late B. Shantha and his brother by name Sri.B.K.Hareesh. It is stated that, after completing the construction of the subject apartment, this Opposite Party has handed over the same to the aforesaid three persons. It is stated that, the Opposite Party has no objection for executing the Sale Deed of the subject apartment in favour of the Complainant provided the Complainant shall take full responsibility of any claim arising from anybody from out of the said agreement dated 10.04.1999 and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Party has committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Sri.B.K. Sathish Yadapadithaya (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C6 were marked for the Complainant as listed in the annexure. Opposite Party not filed counter affidavit but produced one document as listed in the annexure. Both parties produced notes of arguments.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) & (iii): As per the final order.
Reasons
5. Point No. (i) to (iii):
In the instant case, both the parties admitted that, the mother of the Complainant sold her schedule ‘A’ property to the Opposite Party and the Opposite Party entered into an agreement as per Ex C1 and it is also admitted that, the Opposite Party constructed the apartment and handed over the possession of the said flat No.103 at Amaravathy Apartments in First Floor, situated at Arya Samaja Road, Mangalore along with a reserved car park in the basement and along with proportionate undivided interest in the ‘A’ Schedule Land to the Complainant’s mother in the year 1999. In the year 2004 the mother of the Complainant died.
Now the case of the Complainant is that, his mother executed a registered WILL as per Ex C4 in favour of the Complainant bequeathing the said flat in his favour and produced the registered WILL executed by her mother before this FORA. As per the registered WILL, the Complainant is entitled for the Schedule ‘B’ property i.e., a flat described herein above but the Opposite Party refused to register the Sale Deed in his favour despite of his request. However, the Opposite Party in their version agreed to execute a Sale Deed provided the Complainant shall execute an indemnity bond because of the apprehension that he may get liability if the said WILL is contested in future.
However, on scrutiny of the oral as well as documentary evidence, we find that, the mother of the Complainant executed a registered WILL as per Ex C4. In the said WILL the subject flat was bequeathed in Complainant’s favour and the above registered WILL has not been contested in any Court of Law till this date and therefore, raising a apprehension that Opposite Party may get liability if the said WILL is contested in future etc. etc. has no basis. Because no dispute is pending with regard to the WILL or in respect of the above property in any Court of Law. When that is so, the Opposite Party cannot evade to execute the above sale deed and at the same time cannot compel to execute an indemnity bond and withheld the execution of sale deed. However, Opposite Party though agreed to execute a sale deed but took a contention that, the Complainant shall execute an indemnity bond, but no documents/material evidence produced before this FORA to show that the disputes are pending in respect of the WILL or the subject flat before any Court of Law or any other authority. Since there is no dispute pending before any Court of Law/any other authority, the Opposite Party has no locus standi to raise the above contention and avoid the execution of sale deed. It is a settled rule that, the preamble of the sale deed finds a place that how the immovable property acquired by the Opposite Party and on what basis he is executing the sale deed in favour of the Complainant. When that is so, the question of indemnity bond does not arise when there is no cases are pending before any authority.
In view of the above observation, we hold that the Opposite Party failed to execute a Sale Deed in favour of the Complainant as per the registered WILL dated 18.09.2003 executed by the deceased B.Shantha in favour of the Complainant in respect of the above schedule property till this date amounts to deficiency. Under that circumstances, we direct the Opposite Party to execute a Sale Deed in favour of the Complainant immediately and also pay Rs.2,000/- as compensation for the inconvenience and mental agony and Rs.1,000/- awarded as cost of the litigation expenses. Compliance/payment shall be made within 30 days from the date of this order.
6. In the result, we pass the following:
ORDER
The complaint is allowed. Opposite Party is directed to execute a Sale Deed in favour of the Complainant immediately and also pay Rs.2,000/- (Rupees two thousand only) as compensation and Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses. Compliance/payment shall be made within 30 days from the date of this order.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 8 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 10th day of January 2011.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Sri.B.K. Sathish Yadapadithaya – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 22.06.1995: Copy of the Registered Sale Deed executed by late B.Shantha to Dr.K.R.Bhat.
Ex C2 – 07.04.1995: Copy of the construction agreement entered between Dr.K.R.Bhat and late B.Shantha.
Ex C3 – 15.01.2005: Copy of the death certificate of late B.Shantha.
Ex C4 – 18.09.2003: Copy of the Registered WILL executed by late B.Shantha.
Ex C5 – 30.04.2010: Copy of the letter addressed to Dr.K.R.Bhat by the Complainant.
Ex C6 – 21.04.2007: Copy of the Sale Deed executed between Sri.Ibrahim K.M and Sri.B.K.Sathish and another.
Witnesses examined on behalf of the Opposite Party:
Documents produced on behalf of the Opposite Party:
Doc. No.1: 10.04.1999: Copy of the agreement.
Dated:10.01.2011 PRESIDENT
