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

DATED 17^th DAY OF MARCH 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. This complaint has been filed under Section 35 of C.P.Act, 2019 (herein under referred as an Act) has filed the complaint for the following reliefs against the OP:-

(a) Direct the OP to complete and handover the possession of the apartment to the complainants within 30 days of this complaint.

(b) Direct the OP to register the absolute sale deed for the said apartment after receiving the balance sale consideration amount of Rs.94,641/-.

(c) Direct the OP to pay compensation at 15% p.a. on Rs.54,22,227/- from 01.09.2015 till its realization.

(d) Direct the OP to pay compensation of Rs.10,00,000/- for failure in providing the amenities committed by them.

(f) Direct the OP to pay compensation of Rs.1,00,000/- for mental agony, trauma and inconvenience caused.

(g) Direct the OP to pay the litigation costs.

(h) Any other reliefs.

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

The complainants and OP have entered into an agreement of sale and agreement of construction on 01.04.2013 for total sale consideration of Rs.60,65,520/- in respect of apartment bearing No.CB-08-08 on 8^th Floor having super built area of 1428 sq.ft.  /- The complainants have paid in all Rs.54,22,227/- on different dates.  But, OP failed to execute the registered sale deed and failed to deliver the possession of apartment after receiving the balance amount.

3. It is further case of the complainant that even though balance amount payable to the OP was Rs.6,42,993/-.  But, in view of the terms and conditions and delay in delivery of possession, the complainants have lost rental income of Rs.5,48,352/-.  The OP is liable to pay this amount.  If this amount towards rent receivable is deducted from the balance amount, the actual payable amount is Rs.94,641/-.

4. The complainant also contends that on 26.09.2020, the complainants had discussion with the OP with regard to the request of registered sale deed and balance payment.  But, OP failed to heed the request of the complainant.  Accordingly, legal notice came to be served on the OP on 20.11.2018.  Despite receipt of legal notice, the OP failed to comply the request of the complainants.

5. The notice sent to the OP returned with endorsement addressee left.  But this Commission vide order dated 10.03.2021 made a note that when the notice was sent to the correct address of the OP and returned with endorsement addressee left amounts to service and OP has been placed exparte.

6. The complainants have filed affidavit evidence of the complainant No.1 and rely on 17 documents.  Heard the arguments of advocate for complainant.   

7. The following points arise for our consideration:-

1. Whether the complainants prove deficiency of service on the part of OP?
2. Whether the complainants are entitled to relief mentioned in the complaint?
3. What order?

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

       Point Nos.1 and 2:  In the negative.

      Point No.3: As per final orders

REASONS

8. Point Nos.1 and 2:  Even though, OP failed to appear before this Commission and allegations made in the complaint and evidence produced by the complainant remained unchallenged.  The question arises, whether this Commission has jurisdiction to entertain the relief mentioned in the complaint.  It is relevant to refer the reliefs claimed by the complainant.  The following are the reliefs:-

(a) Direct the OP to complete and handover the possession of the apartment to the complainants within 30 days of this complaint.

(b) Direct the OP to register the absolute sale deed for the said apartment after receiving the balance sale consideration amount of Rs.94,641/-.

(c) Direct the OP to pay compensation at 15% p.a. on Rs.54,22,227/- from 01.09.2015 till its realization.

(d) Direct the OP to pay compensation of Rs.10,00,000/- for failure in providing the amenities committed by them.

(f) Direct the OP to pay compensation of Rs.1,00,000/- for mental agony, trauma and inconvenience caused.

(g) Direct the OP to pay the litigation costs.

    (h) Any other reliefs

9. Before considering the other merits of the case, we would like to refer Ex.A.1 to A.17 which are not in dispute.
10. The complainants have reiterated the facts pleaded in the complaint in the affidavit evidence. We carefully perused the contents of the complaint, affidavit evidence of documents relied on by the complainant. 
11. Ex.A.1 is the building brochure consisting flats.  Ex.A.1 is the plan of the apartment.  A unit consists of 272 exclusion unit of 2 BHK, and 3 BHK have with proposed price at Rs.62,00,000/- onwards, Rs.70,00,000/- onwards and Rs.80,00,000/- onwards.
12. The contention of the complainant about the execution of agreement of sale by OP No.1 and agreement to build between OP No.1 and complainants have been substantiated by Ex.A.4 and Ex.A.5.
13. Ex.A.4 is the agreement of sale executed by OP No.1 as the GPA holder of 10 owners. OP No.1 is a GPA has executed this agreement of sale on behalf of 10 owners in favour of the complainants.  It means that 10 owners agreed to sell the property through their GPA holder of OP No.1 to the complainants.  But, the owners of this property are not made as party to the complaint.  No explanation is offered by the complainants for non impleading of 10 owners of the property.  The fact of payment of Rs.19,14,144/- under Ex.A.4 is being spoken by the complainants in the complaint as well as in the affidavit evidence.  The schedule C property i.e. apartment bearing No.CB-08-08 in 8^th Floor, B Block measuring 1428 sq.ft. agreed to be sold by 10 owners through their GPA holder of OP No.1 to the complainants.  There was an agreement to build on the same day between the complainants and OP No.1, wherein the complainants agreed to pay the cost of Rs.28,10,152/- in instalments.  As per agreement to build the OP no.1 was supposed to complete the construction within 23 months + 6 more months from 1^st April 2013.  Ex.A.5 indicates that the total consideration is Rs.62,69,918/-.  This fact has been pleaded by the complainants.  Ex.P.7 is the letter written by the OP No.1 to the Chief Manager, SBI mentioning total consideration amount.  The same amount is also mentioned in Ex.A.4, another letter written by OP No.1 to the SBI.  Under Ex.P.9 the cost allocation is mentioned.  Ex.A.10 to 17 are not in dispute, there is no need to go into detail about these documents.
14. The complainants rely on the lease agreement and renewal lease agreement and receipt for having paid the rent.  The complainants claims Rs.5,00,000/- + towards loss of rental income and he was pleased to pay the rent due to delay on the part of OPs for execution of sale deed and delivery of possession of the property.
15. The transaction is in respect of immovable property.  It is relevant to refer Section 2(42) of the C.P.Act 2019 which speaks about service. The Section 2(42) of the C.P.Act read thus:-

2(42) – Service means of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;

16. As indicate in the preceding paragraph, the complainants seek the main relief of execution of sale deed, delivery of possession and payment of compensation.  We are of the opinion that this Commission has no jurisdiction to entertain the complaint and direct the OP to execute registered sale deed without impleading the owners of land.  Similar question was came up for consideration before Hon’ble National Commission in 2018 (2) CPR 170 (NC) in the matter between Rakesh Nag Vs.MS Kakali Manna where in it is held that “Consumer Protection Act, 1986-Real estate – petitioner/complainant on 26.06.2012 entered into an agreement of purchase of subject flat from the respondent/opposite party for Rs.8 lakhs.  Agreement of sale of flat was executed between the parties and at the time of agreement, Rs.5 lakhs was paid to the opposite party against the consideration amount.  Alleged that thereafter the complainant approached the respondent/opposite party on several occasions to receive the balance Rs.3 lakhs and execute a registered sale deed in respect of the flat in favour of the complainant but in vein – Revisional powers, impugned order is set aside and the complaint is dismissed as not maintainable.  This order will not come in the way of the petitioner/complainant to avail of his remedy by approaching the Civil court for specific performance of agreement of sale between the parties. Revision petition disposed off.
17. The another judgement reported in (2014) 14 Supreme Court Cases 773 in the matter between Ganeshlal Vs. Shyam wherein in it is held that Consumer protection – services – housing scope of sale of plot of land simpliciter not involving a consumer transaction i.e. not amounting to housing construction service cannot lead to a complaint to the consumer Forum.  Thus, failure to hand over possession of a plot of land in such sale simipliciter cannot come within jurisdiction of Consumer Forums.  In view definition of complaint and deficiency in Consumer Protection Act, 1986.  However, housing construction has been specifically covered under service by an amendment inserted by Act 50 of 1993 with effect from 18.06.1993. As far as housing construction by sale of flats by builders or societies is concerned, that would be on a different fooling- where as sale of plot of land simipliciter is concerned, and if there is any complaint, same would not be covered under the C.P.Act. OP is not the owner of the land. In this case, the agreement of sale in respect of open site and agreement of construction is in respect of construction of plat.  When the complainants seeks a direction against the OP to execute registered sale deed in respect of open site and plat.  But, such reliefs cannot be granted without impleading the owners of the site mentioned in Ex.A.4.
18. The Hon’ble National Commission referring the decision of Hon’ble Supreme Court of India in II (2002) CPJ 4 (SC) in the matter between Nithin Construction Pvt. Ltd., Vs. Union of India and others has ruled that the transaction of sale simpliciter, as in the case on hand, also does not come within the purview of the Consumer Protection Act, 1986.
19. In the above decision, there was an agreement of sale of plot executed between the parties and at the time of agreement, Rs.5,00,000/- was paid, the complaint was filed for execution of registration of sale deed in respect of the flat by accepting balance amount of Rs.3,00,000/-.  The order of the District Forum was challenged before the Hon’ble State Commission and Hon’ble State Commission was set aside the order of District Forum and remanded the matter to District Forum observing that disputed subject is in respect of transaction of sale simipliciter.  The complainant had filed Revision Petition before Hon’ble National Commission.  The Hon’ble National Commission while disposing Revision Petition set aside the order of Hon’ble State Commission.  But, opportunity is granted to the revision petitioner/complainant to approach civil court.  The Hon’ble National Commission has categorically ruled that the transaction of sale simpliciter, as in case on hand, also does not come within the purview of C.P.Act 1986.  The facts involved in the above decision and facts of the present case are similar.  This Commission has no jurisdiction to entertain the complaint in respect of land agreed to be sold under Ex.A.4, without impleading the owners of the land. So far sale deed in respect of land is concerned, the owners must be party to this proceeding and combined civil suit requests to be filed against the owners of the land and OP who agreed to construct flat for the complainants.  When complaint itself is not maintainable, the complainants are not right in saying that there is a deficiency of service on the part of OP.  Under such circumstances, complainants are not entitled to any of the reliefs.
20. Point No.3:- Having regard to the discussion in the preceeding paragraph, the complaint requires to be dismissed.  However, the complainant is at liberty to file a civil suit against the owners of the land mentioned in agreement of sale and agreement in build against the OP for specific performance.  We proceed to pass the following 

  O R D E R

1. The complaint is dismissed as not maintainable.
2. The liberty is given to the complainants to file a civil suit against the owners of the land mentioned in agreement of sale and agreement in build against OP for necessary reliefs.
3. Furnish the copy of the order to both the parties.

 (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 17^th March, 2022)

Documents produced by the Complainant which are as follows:-