BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 30^th DAY OF MAY 2017

O R D E R

SRI. P.V SINGRI, PRESIDENT

These complaints have been filed by three complainants, against one and same OP claiming similar reliefs.  The issues involved in both three complaints are one and the same.  Therefore, all these three complaints have been taken up together for disposal under this common order.

2. The complainants have filed these complaints U/s.12 of the Consumer Protection Act, 1986 against the Opposite Party (herein after referred as OP) with a prayer to direct the OP to execute registered sale deed in their favour in respect of schedule properties by receiving the balance amount or in alternative to refund a sum of Rs.4,00,000/- received from each one of them together with interest @ 24% p.a and pay them appropriate compensation/damages for having caused mental agony, financial loss together with litigation cost.

3. The allegations made in all these three complaints are identical to each other.  The sum and substance of averments made in these complaints are as under:

That OP is a real estate developer and announced formation of a residential layout under the name and style “The Heritage” in land bearing survey No.50, 51, 52, 56, 57, 58, 59, 60 & 62, situated at Darapura Village, Kasaba Hobli, Ramanagar Taluk.  That the complainants booked a site each measuring 30’x60’ in the above mentioned layout on 04.12.2013.  That it was agreed between the complainants and OP that the total sale consideration of the site would be Rs.11,25,000/-.  On the date of execution of agreement of sale, each of the complainants paid a sum of Rs.4,00,000/- as part of the sale consideration by way of cheque and NEFT transfer.  That OP executed an agreement of sale dated 04.12.2013 in favour of each of the complainants.  That OP promised the complainants that they will complete the formation of layout and execute the registered sale deed in favour of complainants by receiving balance amount within 15 months from the date of agreement.  That the complainants time and again met OP and requested for execution of registered sale deed by receiving the balance amount, however OP postponed the execution on one or the other pretext.  That the complainants were ever ready and willing to pay the balance amount and obtain the registered sale deed at their cost.  That each of the complainants were to pay balance sale consideration of Rs.7,25,000/- as agreed in the agreement of sale.

That the complainants recently learnt that, OP instead of executing sale deed in favour of complainants in terms of the agreements of sale, they are making hectic attempts to alienate the schedule property in favour of third parties in order to make wrongful gain and cause wrongful loss to the complainants.  Despite repeated requests OP failed to execute the registered sale deed in respect of schedule property in favour of complainants which amounts to deficiency of service on the part of OP.  That when OP did not respond to repeated oral requests, complainants got issued legal notice to OP calling upon them to execute registered sale deed in favour of each one of them, within 15 days from the date of receipt of notice by receiving the balance sale consideration.  Despite receipt of notice, OP failed to comply the demand made in the notice and also failed to refund the advance amount.  That OP for the reasons best known to them failed to execute the registered sale deed despite oral request as well as legal notice.  Therefore, complainants having left with no other choice, have approached the Forum for redressal.

4. In response to the notice issued OP appeared through their advocate and filed their identical version in all these three cases contending in brief, as under:

That the complaints are not at all maintainable since the agreement entered is undervalued and Director Sri.K.R Raja had no power to enter into any agreement on behalf of the company and the agreement between the complainants and said K.R Raja is a private transaction.  That the said Sri.K.R Raja is no more.  That there is no relationship of trader and ‘consumer’ between the parties.  Therefore complainants cannot invoke the provisions contained in Consumer Protection Act, 1986.  That this Forum has no jurisdiction to entertain the complaints since the consideration amount for each site is Rs.11,25,000/-.  That the complainants were to approach the civil court for enforcement of the alleged agreement of sale.  That the complainants were bound to pay remaining balance within 15 months of the agreement, but they have failed to do so to get the sale deed.  That the dispute is civil in nature and only course of action is to file a suit for specific performance of agreement by paying 7½% court fee on the said consideration.  That complainants have approached this Forum to avoid payment of court fee.  That the complaints are not at all maintainable and the complainants are not entitled for any relief.

For the above, amongst other reasons, OP prays for dismissal of the complaint.

5. On the rival contention of parties to the complaints the points that arise for our determination in these cases are as under:

        6. After version was filed the complainants were called upon to tender their evidence by way of affidavit.  Accordingly each of the complainants have tendered their evidence by way of affidavit and placed reliance on certain documents.  OP also tendered the evidence of one K.R.Kannan S/o Late K Raghunathan, one of the directors of OP Company in support of their averments made in the version.  Both the parties have submitted their written arguments and have placed reliance on certain authorities.  We have also heard oral arguments.

7. Our answer to the above issues are as under:

REASONS

8. OP does not deny the execution of agreements of sale in favour of each of the complainants.  However OP contends that the executant of the said agreements Sri.K.R Raja, one of the Director of OP Company, had no power to enter into any agreement of sale, on behalf of the company.  Admittedly the said K.R Raja, is no more.  OP who claims that the said K.R Raja, had no power to enter into any agreements on behalf of company, did not produce the byelaws of the company to show as to who actually was authorized to execute the agreements such as the one produced in these complaints, on behalf of the said company at relevant time.  Mr.K.R Kannan, who has signed the power filed in all these complaints did not substantiate that he has been authorized by the company to appear on behalf of OP Company and defend the company in these complaints.  In absence of any relevant documents including byelaws of the OP Company, we are not able to accept the contention of OP Company that late Mr.K.R Raja, had no power to enter into any agreements on behalf of the Company during the relevant time.  It is also not the case of OP Company that, late Mr.K.R Raja has not accounted the amount received under the agreements executed in favour of complainants to the company.  It appears to us that, now OP is taking up such a contention, may be due to the death of said K.R Raja.  Moreover OP Company also did not reply to the notice issued by the complainants calling upon them to execute registered sale deed in favour of each one of them in respect of schedule sites by receiving balance amount.  Therefore, we are of the opinion that, OP Company is bound by the agreements executed by Mr.K.R Raja in favour of all these three complainants.  It is brought to our notice by learned advocate for the complainants that, as per clause-3 of the agreement of sale, OP were expected to complete the process of execution of sale deed in favour of each of the complainants by receiving balance amount within 15 months from the date of agreement.  He further argued that, even after expiry of 15 months, OP did not inform any of the complainants as to when they would execute registered sale deeds in their favour.  It is apparent from the material placed on record that, despite the readiness of complainants to obtain registered sale deeds by tendering the balance amount, OP failed to execute the sale deed, instead, OP appears to have made attempts to execute registered sale deeds in favour of third parties for higher consideration.

9. OP did not provide any explanation for their failure to execute registered sale deed in terms of agreements of sale within 15 months from the date of agreements of sale, despite the complainants were ready to pay the balance consideration amount.  OP even did not respond to the legal notice got issued by each of the complainants calling upon them to execute registered sale deeds in terms of agreement of sales by receiving the balance amount.  The conduct of OP in failing to abide by the terms and conditions of the agreement amounts to grave deficiency of service.  OP who have received advance amount of Rs.4,00,000/- from each of the complainant and who have executed agreements of sale in the month of December 2013 failed to complete the said transaction within the time stipulated by them in the agreements.

10. In para-9 of the version OP took up a contention that complainants failed to abide by the terms and conditions of the agreement of sale by not paying the balance amount within 15 months from the date of agreement.  It is pertinent to note here that, at no point of time OP called upon the complainants either orally or in writing, within 15 months from the date of agreement of sale to obtain registered sale deed by paying the balance amount.  As already stated above, OP even did not respond to the legal notice issued by complainants calling upon them to execute registered sale deed by receiving the balance consideration amount.  This conduct of OP in not responding to the oral as well as legal notice, issued by the complainants not only amounts to grave deficiency of service but also unfair trade practice.  There is no any explanation, much less satisfactory explanation from the OPs in their failure to abide by the terms and conditions of the agreement of sale.  The complainants have successfully proved deficiency of service on the part of OP.

11. Time and again the Hon’ble Apex Consumer Court as well as Hon’ble Supreme Court have held that, in a case like this the complainants would become ‘consumer’ as defined under the Consumer Protection Act.  Therefore, we are of the opinion that, there is no basis for the contention of OP that the complainants are not the ‘Consumers’ as defined under the Consumer Protection Act, 1986.

12. The learned advocate for the OP placing reliance on judgment rendered by Hon’ble Punjab & Haryana High Court reported in 2016 (1) ICC 39 (Pb. & Hry.) argued that the present complaints filed U/s.12 of the C.P Act are not maintainable and the complainants have to approach the appropriate civil courts for specific performance of the contract.  The facts referred to in the above cited authority and the facts of the case on hand are entirely different.  Therefore, the ratio laid down in the said case law, in our humble opinion, cannot be made applicable to the case on hand.

13. Further the learned advocate for OP, placing reliance on a judgment rendered by Hon’ble High Court of Calcutta, in a case reported in 2014 (2) ICC 853 argued that, this Forum has no jurisdiction to entertain the present complaints.  Perused the judgment referred supra.  The facts involved in the said authority are entirely different from the facts in the present case on hand.  Therefore, the principles laid down in the said authority, in our humble opinion, cannot be made applicable to the case on hand.

14. OP without there being any valid cause/reason, has wrongfully retained the advance amount paid by each of the complainants and thereby caused huge financial loss to the complainants.  Though the complainants have sought for a direction to OP for execution of registered sale deed in respect of schedule site by receiving balance amount, but there is no material on record to show that, these sites as mentioned in each of the complaints/agreements of sale are still available for sale.  OP in their version or affidavit evidence or in written arguments did not mention as to the availability of schedule sites or any other sites in the said residential project.  Therefore, we feel it appropriate to direct OP to refund the advance amount to each of the complainants.  Since the complainants have retained the said amount without there being any valid reasons shall have to be directed to pay interest @ 18% p.a on the advance amount from the date of receipt till the date of realization.  The conduct of OP in not responding to any of the request made by the complainants, orally as well as writing, must have caused the complainants great inconvenience, hard ship and mental agony for which OP has to be directed to pay adequate compensation together with litigation cost.  Accordingly point No.1 is answered.

15. Point No.2 - In view of the discussions made in the above paragraphs, we are of the opinion that, the OP has to be directed to refund advance amount of Rs.4,00,000/- to each of the complainants together with interest @ 18% p.a from the date of receipt till the date of realization and to pay compensation of Rs.1,00,000/- to each of the complainants together with litigation cost of Rs.10,000/- to each of the complainants.

16. The order could not be passed within the stipulated time due to heavy pendency.

17. In the result, we proceed to pass the following:   

  O R D E R

All the complaints filed by the complainants U/s.12 of the Consumer Protection Act, 1986 are allowed in part. 

The OP in complaint No.1183/2016 is directed to refund a sum of Rs.4,00,000/- (Four Lakhs Only) to the complainant together with interest @ 18% p.a from the date of receipt till the date of realization.  Further OP shall pay compensation of Rs.1,00,000/- together with litigation cost of Rs.10,000/-.

The OP in complaint No.1184/2016 is directed to refund a sum of Rs.4,00,000/- (Four Lakhs Only) to the complainant together with interest @ 18% p.a from the date of receipt till the date of realization.  Further OP shall pay compensation of Rs.1,00,000/- together with litigation cost of Rs.10,000/-.

The OP in complaint No.1185/2016 is directed to refund a sum of Rs.4,00,000/- (Four Lakhs Only) to the complainant together with interest @ 18% p.a from the date of receipt till the date of realization.  Further OP shall pay compensation of Rs.1,00,000/- together with litigation cost of Rs.10,000/-.

OP shall comply the said order within four weeks from the date of communication of the order.

Furnish free copy of this order to both the parties.

This original order shall be kept in complaint No.1183/2016 and a copy of it shall be placed in other connected file.  

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 30^th day of May 2017)

MEMBER                            MEMBER                    PRESIDENT

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Witnesses examined on behalf of the complainant/s dated 27.12.2016.

Documents produced by the complainant:
    (Complaint No.1183/2016)

Documents produced by the complainant:
    (Complaint No.1184/2016)

Documents produced by the complainant:
    (Complaint No.1185/2016)

Witnesses examined on behalf of the Opposite party dated 10.02.2017.

1. Sri.K.R Kannan.

Documents produced by the Opposite party:

    MEMBER                            MEMBER                   PRESIDENT

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