COMPLAINT FILED: 30.07.2008<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 25th NOVEMBER 2008<br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT<br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI. A. MUNIYAPPA MEMBER <br /> <br /> <br /> COMPLAINT NO. 1672/2008<br /> <br /> <br /> COMPLAINANT Mr. V. Ganapathi,<br /> S/o. G. Velu,<br /> Aged about 28 years,<br /> Residing at No. 149/35,<br /> 43rd Cross,<br /> 2nd Main, Jayanagar 8th Block,<br /> Bangalore – 560 082.<br /> <br /> <br /> Advocate (S. Nischal)<br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTIES 1. Sri. M. Thyagaraju,<br /> S/o. Chenchu Naidu,<br /> Aged about 43 years,<br /> R/at No. 5/116, Kaverinagar,<br /> Kathariguppa,<br /> Banashankari 3rd Stage,<br /> Bangalore – 560 050. <br /> <br /> <br /> 2. Sri. M. Chandrashekar Naidu,<br /> S/o. Gurappa Naidu,<br /> Aged about 45 years,<br /> R/at No. 37, Ittamadu Layout,<br /> Banashankari 3rd Stage,<br /> Bangalore – 560 085. <br /> <br /> <br /> 3. Sri. B. Narasimhalu Naidu,<br /> S/o. late. B. Akkar Naidu,<br /> Aged about 47 years,<br /> R/at No. 99/1, Rama Rao Layout, Kathariguppa, <br /> Banashankari 3rd Stage,<br /> Bangalore – 560 085. <br /> <br /> <br /> 4. Sri. R. Balakrishna,<br /> S/o. Raja Gopal Naidu,<br /> Aged about 41 years,<br /> R/at No. 82, “Gurusai Nilaya”,<br /> 1st ‘B’ Cross, 2nd Main,<br /> 5th Block, Banashankari <br /> 3rd Stage,<br /> Bangalore – 560 085.<br /> <br /> <br /> Advocate for OP.1 to 4 <br /> (M.S. Manjunath)<br /> <br /> <br /> 5. M/s. D.S. Max Properties <br /> Pvt. Ltd.,<br /> Off No. 404, 4th ‘G’ Main,<br /> Near Kalyannagar Telephone Exchange,<br /> Bangalore – 560 033.<br /> Represented by its Partners.<br /> <br /> <br /> Advocate (M.S. Kumarinath)<br /> <br /> <br /> O R D E R<br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to handover the original sale deed and pay a compensation of Rs.3,10,000/- and for such other reliefs on an allegations of deficiency in service. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> Complainant being lured away with the advertisement and propaganda issued by the OP.1 to 4 who claims to be the builders and developers of residential flats, thought of purchasing a flat in ‘Surya Nilaya’. Complainant purchased the flat No. 205 for a total cost of Rs.39,00,000/-. A sale agreement came to be executed on 07.11.2006. OP promised to complete the said construction and handover the possession well within the reasonable time. Complainant is prompt in making payment of the cost of the flat to the tune of Rs.36,50,000/-. It was agreed between the parties that the balance of Rs.2,50,000/- is to be paid at the time of handing over of the original sale deed. Complainant paid the stamp duty and registration charges and the flat came to be registered on 21.03.2007. Complainant took possession of the said flat in the month of December 2007 paid Rs.1,00,000/- as per the demand made by the OP’s. Though he is ready and prepared to pay the balance of Rs.1,50,000/- OP.1 to 4 and OP.5, on one or the other reason they went on postponing with respect to handing over of the said original deed. The repeated requests and demands made by the complainant, went in futile. Complainant got issued the legal notice on 19.04.2008. Again there was no response. Thus complainant felt the deficiency in service on the part of the OP’s. For no fault of his, he is made to suffer both mental agony and financial loss. Under the circumstances he is advised to file this complaint and sought for the relief accordingly.<br /> <br /> 2. On appearance, OP.1 to 4 the so called builders filed their objections mainly contending that the said sale deed is with the promoter the OP.5 and they will assist the complainant in getting the sale deed if he pays Rs.1,50,000/-. As per the letter dated 17.12.2007 OP.5 admitted the fact with regard to the possession of the sale deed. So complainant has to proceed against OP.5 and not against this OP.1 to 4. Among these grounds, OP.1 to 4 prayed for the dismissal of the complaint.<br /> <br /> 3. OP.5 filed the separate version mainly contending the said registered sale deed is not with him. When the said sale deed was registered complainant and OP.1 to 4 were also present. Who received the said sale deed or who has misplaced it is not known. So no liability lies on OP.5 to return the said sale deed even if complainant is ready to pay balance of Rs.1,50,000/-. The other allegations made against OP.5 are baseless. Among these grounds, OP.5 also prayed for the dismissal of the complaint.<br /> <br /> 4. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced the documents. OP’s have also filed the affidavit evidence and produced the documents. Then the arguments were heard.<br /> <br /> 5. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has proved <br /> the deficiency in service on the part of the OP’s?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the reliefs now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 6. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Affirmative<br /> Point No.2:- Affirmative in part<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 7. At the outset it is not at dispute that the complainant purchased flat No. 205 in ‘Surya Nilaya’ built by OP.1 to 4 and promoted by OP.5 for a valid consideration of Rs.39,00,000/-. It is also not at dispute that sale agreement came to be executed on 07.11.2006 and complainant has paid nearly Rs.36,50,000/- towards the cost of the flat to these OP’s on various dates. Thereafter complainant paid the stamp duty and registration charges and the said flat was registered in his favour on 21.03.2007. It is also not at dispute that by mutual agreement between the parties the remaining Rs.2,50,000/- is to be paid when the original sale deed is returned to the complainant. On the perusal of the defence set out by the OP the complainant paid another Rs.1,00,000/- as per the demand made by these OP’s on 17.12.2007 and he is prepared to pay the remaining Rs.1,50,000/- which is in due. <br /> <br /> 8. Now it is the grievance of the complainant that though he is ready and willing to pay the remaining balance OP’s are not ready to deliver him the original sale deed on acceptance of the said balance. His repeated requests and demands made to OP even by causing the legal notice, went in futile. The copy of which is produced. Thus he felt the deficiency in service on the part of the OP’s. The evidence of the complainant which finds full corroboration with the contents of the undisputed documents appears to be very much natural, cogent and consistent. There is nothing to discard his sworn testimony. It is a quality of evidence that is more important than that of the quantity. As against this unimpeachable evidence of the complainant, the defence set out by the OP appears to be defence for defence sake, just to shirk their responsibility, which is tainted with crocodile tears.<br /> <br /> 9. The fact that complainant took possession of the said flat on 21.03.2007 is also not at dispute. With all that what made the OP to retain the said original sale deed even though complainant is ready to pay the remaining balance of Rs.1,50,000/- for all these days is not known. The hostile attitude of the OP must have naturally caused both mental agony and financial loss to the complainant, that too for no fault of his. OP.1 to 4 builders wants to transfer the buck on OP.5 the promoter. OP.1 to 4 says as per the letter dated 17.12.2007 sent by OP.5, the sale deed lies with him and he can collect the remaining Rs.1,50,000/- and do the needful. The copy of the said letter is produced. We have gone through the said letter. On the other hand OP.5 has come up with a defence that the registered sale deed is not with him. When the said sale deed was registered, complainant OP.1 to 4 and himself were present and he do not know who took the said registered sale deed after scanning.<br /> <br /> 10. In another breathe OP.5 says that the original sale deed must have been misplaced or it is missing. The whole of the defence of the OP appears to be tainted with malafide intentions. OP’s to the reasons best known to them wants to breathe hot and cold. The approach of the OP’s does not appears to be very much fair and honest. If there is a dispute between the builder and the promoter namely OP.1 to 4 and OP.5 they have to sort it out among themselves, they cannot make the complainant as a scapegoat, that too when once they have received more than Rs.37,50,000/- from the complainant. The complainant is ready to pay the remaining Rs.1,50,000/-. With all that he is made to suffer and asked to move from pillar to post, it is unfortunate. It is less said the better about the unfair trade practice on the part of the OP. We are satisfied that complainant is able to prove the deficiency in service on the part of the OP. Under such circumstances he deserves some relief. Accordingly we answer point nos.1 and 2 and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint is allowed in part. OP’s are directed to receive remaining Rs.1,50,000/- from the complainant and handover the original sale deed with respect to flat No. 205 of ‘Surya Nilaya’ within four weeks from the date of communication of this order. Failing in which OP.1 to 4 and OP.5 are jointly and severally directed to pay a compensation of Rs.10,000/- per month from January 2008 to the complainant till handing over of the original sale deed and also pay a litigation cost of Rs.2,000/-.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 25th day of November 2008.) <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> p.n.g. <br />