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

DATED 12^th DAY OF OCTOBER 2021

                                          O R DE R

SRI.S.L.PATIL, PRESIDENT

The complainant filed this complaint under Section 12 of Consumer Protection Act, 1986 against Opposite Party (herein after referred as OP) with a prayer to direct the OP to execute the sale deed and get register the site in favour of complainant measuring 60 x 40 ft. totally 2400 sq.f.t in the residential layout formed by OP at Brammanandasagara, Hunsur Road, Yelwala Village, Mysuru Taluk, Mysuru District or direct the Op to refund the entire amount with interest at 24% p.a., to pay compensation of Rs.2,00,000/- and to pass such other reliefs.   

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

 The complainant submits that he is the member of OP society bearing application No.A-51263.  The OP has developed residential layouts spread over 130 acres of land at Brammanandasagara, Hunsur Road (Proposed National highway), Yelwala Village, 12 Kms. Approximately from the city.  Further complainant submits that he applied for residential site measuring 40 x 60 ft. for the value fixed 194 per sq.ft. total value of Rs.4,65,000/-.  The complainant has paid Rs.6,08,200/- on various dates and he has paid the excess amount of Rs.1,42,600/- as per guidelines/circular. The complainant is ready to get register the site in his favour and pay the stamp duty and registration expenses.  Further complainant submits that even though the Op has not formed the sites at the above mentioned address for which reason best known to the OP and with a malafide intention alienating sites in favour of the third parties and mean while intimating inflated site rates in favour of the members according to whims and fancies of the OP.

Further complainant submits that he has paid excess amount, OP not come forward to execute the sale deed in favour of him.   The complainant has got issued legal notice dated 09.03.2021 to OP but there is no reply from OP.  Further complainant submits that malafide intention of OP is revealed by their action large extent of land to his friends, relatives and third parties which is clearly shows that Op has committed a deficiency of service and has not interests to execute the sale deed in favour of complainant.   The cause of action for the suit arose on when the complainant has paid the instalments to OP and finally on 09.03.2021 when he got issued legal notice to OP.  

 3. After admitting the complaint, notice was ordered to issue to the OP duly served, OP did not appeared, hence placed exparte.

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.3.   The complainant filed written arguments. Heard the learned counsel for the complainant.

5. The points that arise for our consideration are:

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

  6.  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 OP did not appear to contest the claim of the Complainant by way of filing the version, hence placed exparte. Under such circumstances, non-appearance and non-filing of version can be drawn an adverse inference that, the OP has 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.6,08,200/- by way of instalment, OP is not in a position to get registered the regular sale deed.  Even on repeated requests that OP 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.  Hence, he is entitled for the registration of the site in his favour.   To falsify all these facts, OP did not appeared, upon causing notice to him.    

9. Looking to the documents produced by the complainant, we deemed it just and proper to direct the OP to get registered the site measuring 40 x 60 ft. in its layout as promised and complainant has to bear the registration charges.  We have also kept another option to the complainant that in the event, OP failed to register the sale deed in his favour, he is at liberty to get refund an amount of Rs.6,08,200/- with interest at the rate of 10%p.a. by way of compensation from the date of periodical payment with litigation cost of Rs.5,000/- in the light of the decision reported in 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. Hence, we answer the point No.1 partly in the affirmative.

10. Point No.2:  In the result we proceed to pass the following:-

1. The complaint filed by the complainant is allowed in part.
2. OP is directed to execute the registered sale deed at Brammananda Sagara, Mysuru measuring 40 x 60 ft. situated at Hunsur Road, Yelwala Village, Mysuru which has been allotted to complainant and put him in possession of the same in favour of the complainant by receiving balance amount if any.  It is the complainant to bear the registration charges. If the complainant is unable to pay the remaining amount if any to get execute the sale deed in respect of the said site allotted by the OP, he is at liberty to seek the refund of Rs.6,08,200/- with interest at 10% p.a. by way of compensation from the date of periodical payment till realization with litigation Cost of Rs. 5,000/-.
3. The OP shall comply the order of this Commission within a period of six weeks from the date of receipt of the order, failing which the complainant is at liberty to take steps 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 Open Commission on this 12^th day of October, 2021).

Document produced by the complainant are marked as Ex.A.1 to Ex.A.3 are as follows: