Date of Filing :03.05.2018

               Date of Disposal:20.04.2021

BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)

DATED:20^th APRIL 2021

PRESENT

Mr KRISHNAMURTHY B SANGANNANAVAR: JUDICIAL MEMBER

Mrs DIVYASHREE M: LADY MEMBER

COMPLAINT No.201/2018

Mr.H.V. Muralidhara
S/o H.Venkannachar,
Aged about 42 years,
R/a No.33-35 & 35A,
Royal Enclave, Flat No.503,
5^th Main, Spoorthinagar,
Arehali, Uttarahalli hobli,
Bangalore-560061
(In person)                                                                    Complainant                 
                                                         -Versus-

1.  Mr.E.Eshwar
     Partner,
     Royal Properties
     S/o E.Madhava Naidu
     No.5, 4th Main, Arehalli,
     Near Shri Narayana Techno School,
     Uttarahalli hobli,
     Bangalore-560061

2.  Mr.C.Jayanath Naidu
     Partner,
     Royal Properties,
     S/o Late C.Annaiah Naidu
     D.No.4-1978, Durganagar colony,
     Greamspet, Chittor Town,
     Chittor-517001
 

3.  Mr.J.Pramodh Kumar
     Partner,
     Royal Properties,
     S/o J.Poli Chetty,
     Flat No.101, Gangothri Palm Grove,
     22nd "A" Main road,
     Raghavendra layout, Padmanabhanagar,
     Bangalore-560070

4.  Mr.Sanjeev K.Joshi
     Marking Partner,
     Royal Properties,
     Flat No.101, No.38, Lotus Springs,
     8th Main, Nanda Kumar Layout,
     Arehalli,
     Bangalore-560061                                           Opposite Parties
     (By Ms. D.Sowbhagya for OP 2, 3 & 4)

-:O R D E R :-

Mr.KRISHNAMURTHY B SANGANNANAVAR: JUDICIAL MEMBER

1.       This is a complaint filed under section 17 of Consumer Protection Act, 1986 to grant following reliefs

a)           OP should be punished severally so that, culprits of similar    

kind would be afraid to indulge in such criminal activities.

b)       Direct OP to accept return of defective that bearing No.503 of Royal Enclave project at Fourth Floor.

c)       Direct Op or any person claiming under or through the OP to return the price/charges paid of INR 50,53,000/- paid by complainant towards sales consideration along with interest.

d)       Direct OP to refund an amount of INR 5,98,000/- paid by the complainant against the demand in addition to sales consideration along with interest.

e)       Direct OP to refund registration charges paid by complainant of INR 3,27,565/-.

f)        Direct OP to pay a sum of Rs.6,00,000/- as exemplary damages in lieu of OP’s acts of harassment and coercion leading to mental agony and paid suffered by the Complainant and cost of the litigation.

2.       In order to seek the above reliefs, complainant alleged against OPs that they cheated, by providing manipulated and forged documents, defective and illegal sale consideration, normal flat cost charged for illegal floor, breach of trust, violated completion and occupancy certificate, poor quality of construction and they failed to resolve the deficiencies.  OPs are partners, they are the builder and developers offered him a flat at their project Royal Enclave situated at Spoorthinagar, Arehalli, Uttarahalli Hobli, Bengaluru for Rs.56,51,000/- for 3 BHK flat bearing No. 503, on 30.08.2016  at 4^th Floor measuring 1385 sq. ft super built up area with 307 sq. feet with undivided  share.  He has paid an additional amount of Rs.5,98,000/- towards total cost of the flat and Rs.3,27,565/- towards registration charges.  The initial license of constriction and plan approved having permission for basement Ground plus 4 for 30 units of apartments. On 08.03.2018 he approached OP and informed about the facts wherein complainant requested OP to regularise the floor with BBMP Authority.  OPs have denied for negotiation because a seller cannot give better title to the buyer then what he himself.  The action of OPs individually and collectively amounts to restrictive trade practice and unfair trade practice as defined under CP Act, 1986 is bound to comply with the prayer.

3.       OPs 1 and 2 are none other the partners of Royal Properties, since OPs 3 and 4 are served, as such, Commission held OPs 1 and 2 had notice of complaint.  OP 4 filed version and same has been adopted by OP3.

4.       OP 4 denied all the allegations made in the complaint and he is not concerned with the present complaint or with other OPs.  The OPs are not partnership firm.  Complainant had entered into Agreement of Sale after going through the entire title of documents of the OP and also sanctioned plan issued by BBMP and it has been clearly mentioned in the recital to the sale deed to that effect as on the date of purchase of flat by Complainant, several other flats were available in other floors but he himself to be purchased in 4^th floor.   There is no fault of any nature as alleged by the Complainant against the OPs. OPs never undertake to make Khata of the flat in favour of the complainant.  However, at his request agreed to get done the same, but, as the complainant has not come up with payment of taxes due and liability to pay by him they could not done for the Complainant.   Complainant has suppressed the material facts is not entitled for any of the reliefs sought in his complaint.

5.       In view of the rival contentions of the parties to this complaint, Commission held an enquiry, by receiving the affidavit of  Complainant   and Ex-C1 to C10 respectively. Contrary, to such evidence, Ops placed nothing on record, as such, closed enquiry and we heard learned counsels on record.  

6.       Now, Commission to decide whether complainant has proved deficiency in service on the part of OPs and he is entitled for the reliefs sought in his complaint?

7.       The enquiry being summary, at  the very outset, Commission has to examine documents placed by the Complainant, commencing from Ex-C1 to C10 respectively.  They are copy catalogue provided by the OPs, copy of the standard form Agreement to Sell, copy of the Absolute Sale Deed, copy of the receipt of additional amount paid, copy of BBMP reply for RTI Application, license of construction and plan approval provided by OPs, licence of construction and plan approval issued by BBMP Authority, written communication letters to OPs, few photographs to show poor quality of construction and payment made by complainant to OPs. It is to noted herein all these payments are made through cheques, NEFT and cash and they are received by Mr.E.Eshwar, Mr.J.Promod Kumar, Mr.C.Jayantha Naidu and Mr.Sanjeev K.Joshi commencing from 16.09.2016 to 18.01.2017.  He has paid Rs.56,51,000/-.  Out of these payments, Rs.63,000/- paid on 27.10.2016 by cash to Sajeev K.Joshi and Rs.10,000/- also cash paid to him on 18.01.2017.  Thus besides two cash payments OPs received money through cheques and NEFT which has to be believed by the Commission.  Further the photographs depict poor quality of construction and we could see cracks in the walls with naked eyes.  The most of payments received by Mr.Sanjeev Kumar Joshi who is none other than OP 4 is a Marketing Partner of Royal properties he has submitted the version may be for the said reason.

8.       It is to be noted herein agreement of Sale is dated 26.08.2016 entered between OPs 1 to 3 and Complainant wherein could see Schedule A property measuring 840 sq. ft situated at Harehalli  Village is a converted land bearing Sy.No.20/21, 15/3 and 15/4 respectively. Schedule-B is the description of the apartment flat bearing No.503 in the 4^th floor portion of the multi-storeyed building called as Royal Enclave. Schedule-C is undivided share right, title and interests in the ownership in the Schedule A property equivalent to 307 sq. ft.  Schedule-D is the payments schedule an agreement Rs.10 lakhs and housing loan Rs.40 lakhs.  Thus after they entered into this Agreement of Sale in respect of flat No.503 in the 4^th Floor on 27.10.2016 executed Absolute Sale Deed in favour of Complainant in respect of flat bearing No.503 in 4^th Floor.  In other words, the property to be sold as agreed under agreement of sale stated supra.  In so far as these documents are concerned no dispute.  According to OP 4 is not concerned to partnership nor is a partner.  It is be noted herein that he is in field of marketing of Royal Properties received most of money paid by the complainant which is already stated supra, in fact dispute arose alleging deficiency of service only after getting absolute sale deed on the ground that the flat promise to be sold and purchased under absolute sale deed is an unauthorised construction at Royal Enclave. Although OPs obtained license for construction and got sanctioned plan approved for Ground plus three have put up construction in violation of the license and sanction approval obtained from BBMP.  It is therefore, on 27.03.2018, Asst. Director, Town Planning of BBMP supplied information to the complainant pursuant to his application dated 07.03.2018.   That, as per records of BBMP, Royal Enclave property belongs to Mr.E.Eshwar, Mr.C.Jayantha Naidu, Mr.J.Promod Kumar, Mr.B.V.Ashok Kumar, Mrs.R.S.Devi Kumari, Mrs.D.S.Lalitha Rani, Mr.N.G.Srinivas and Mr.K.S.Purshothama. On 18.03.2018 complainant got issued legal notice that he personally approached Mr.Sanjeev K.Joshi, Marketing Partner of Royal properties expressed his concerned but producing actual license plan approved which was issued by BBMP wherein he promised and guaranteed their license and plan approved and no defects in the licence obtained by them is valid in all respects and occupancy certificate is not mandatory.  Although it was notified to OPs that they failed to reply to the contents of the notice.  According to allegation of the complainant flat No.503 purchased by him is an unauthorised construction could not be retain by him and the OPs have suppressed the material facts before entering into Agreement of Sale and getting absolute sale deed. Contrary, so much of materials placed on record by the complainant, OPs have failed to rebut the evidence and they also neither failed to show that the flat agreed to be sold and purchased by the complainant is not a defective flat nor constructed in violation of license of construction issued by BBMP.

9.        In the above such circumstances, OPs have to be held deficient in their service to be provided to complainant as agreed under Agreement of Sale and Sale Deed, since to obtain those two vital documents complainant having been   attracted   from Ex-C1 catalogue provided by Ops and he proceeded to enter in to an agreement with the Ops with pond hope of a dream house in Bengaluru City.  In so far as OP No.4 is concerned, although his name could not be found in the information supplied by BBMP. The facts remained he received the money from complainant being in the Marketing of Royal properties, as such he could be stated a proper party. To find support, receipt of cheques and their encashment  from complainant on behalf of OPs 1 to 3 are sufficient, since their name could be seen in the Agreement of Sale and Sale Deed.  

10.     In the above such conclusion, complainant has to be held entitled for reliefs.  Accordingly, Commission allowed the complaint filed under section 17 of the CP Act, 1986.

           Consequently, directed OPs 1 to 3 to accept return of defective flat bearing No.503 of Royal Enclave project at 4^th floor from Complainant and return its price amounting to Rs.50,53,000/- along with interest @ 9% per annum from the date of receipts till realisation.

          Further, directed to refund Rs.5,98,000/- paid by the Complainant against the additional  demand towards sale consideration along with interest @ 9% per annum from the date of payment till realisation.

          And directed to refund Rs.3,27,565/- paid towards registration charges by the Complainant and do pay Rs.50,000/- towards litigation charges within 60 days from the date of receipt of this order.

               Lady Member                       Judicial Member                   

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