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

DATED 23^RD DAY OF FEBRUARY 2024

ORDER

SMT.M.SHOBHA, PRESIDENT

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

1. Direct the OPs to pay agreed interest amount of Rs.10,34,158/- along with interest at 24% p.a., from 27.02.2023 to till the actual payment.
2. Direct the OPs to pay Rs.2,22,000/- with interest at 24% p.a., from 20.03.2023 to till the actual payment.
3. Rs.5,00,000/- towards damages and mental agony with interest 24% p.a., till the actual payment.
4. Grant costs.
5. Such other relief/s as this Hon’ble Commission deems fit.

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

The OP1 and 2 represented to the complainant that they are the joint and absolute owners of land measuring 16 acres 35.08 guntas situated at Kaggalipura Village, in different survey numbers, Bangalore South taluk and duly converted for non-agricultural residential purposes.  They have formed a layout in the said lands approved by the Kanakapura planning authority in the name and style Sri Shankara Kaggalipura.

3. The complainant had a deep desire to construct and own an independent villa in Bangalore and he was looking out for a suitable property to construct villa in and around Bangalore. The OP1 and OP2 have entered into a sale agreement on 27.02.2021 with the complainant for sale of site No.111, measuring 40X30 feet in the aforesaid layout for a total consideration of Rs.29,40,000/-.  The complainant has remitted a total amount of Rs.22,20,000/- on 26.02.2021 through cheque and also Rs.15,00,000/- on 29.04.2021 and Rs.7,20,000/-.  The OP2 issued the receipts in the letter heads of their firm in the name and style of Aditya Builders and Promoters.

4. The OPs 1 and 2 without commencing the work went on building air castle instead of completing the work and executing the absolute sale deed in favour of the complainant after receiving the balance sale consideration.  The OP1 and 2 through their duly constituted attorney holder and S/o. Mr.M.Suresh, the OP3 conspired with an ill intention and motive to cheat the complainant had sold the schedule property in favour of one R.K.Rameshwar Reddy vide absolute sale deed dated 30.12.2021.  Despite non completion of the bridge which gives access to the schedule property.

5. The complainant came forward to pay the remaining sale consideration of Rs.7,20,000/- and requested for execution of absolute sale deed in his favour. The OPs without disclosing the absolute sale deed entered between them and the other third party have procrastinated to enter into absolute sale deed of the schedule property in favour of the complainant by receiving Rs.7,20,000/- citing lame excuses of covid lockdown, uneven rains, labour problems etc.

6. The complainant came to know about the execution of the absolute sale deed dated 30.12.2021 in respect of the schedule property in favour of the third party. The OPs without either bothering to inform the complainant or returning the money received as advance amount have executed the absolute sale deed in favour of the third party.  After that the OP3 with OP1 and 2 have informed about the absolute sale deed dated 30.12.2021 alleging that they have executed by mistake of facts and they have further agreed to re-register the schedule property in the name of the complainant in a months’ time, failing which they have agreed to refund the amount of Rs.22,20,000/- duly received by them along with 10% of advance amount as per clause VII(a) of the sale agreement dated 27.02.2021 and interest @ 24% from the date of receipt till date of refund.

7. It is further case of the complainant that the OPs failed to cancel the absolute sale deed executed in favour of the third party dated 30.12.2021 and to re-register the property in favour of the complainant.  When the OPs have not come forward to refund the amount, the complainant has filed a complaint before Kaggalipura Police Station. Upon the intervention of the Kaggalipura police station officers, OP3 came forward and gave a statement on 04.02.2023 that he would share draft absolute sale deed and execute absolute sale deed in favour of the complainant in respect of the schedule property on 14.02.2023 by receiving the balance amount, failing to do so, the OP3 further undertook to refund the earnest money of Rs.22,20,000/- with 24% interest. Even though has sent the draft absolute sale deed through email has failed to convince the third party Mr.R.K.Rameshwar Reddy either to directly register the schedule property in favour of the complainant for the same consideration or to cancel the absolute sale deed dated 30.12.2021 nor refunded the amount.  After strenuous follow-ups by the complainant OP3 refunded the principal amount between 28.02.2023 to 20.03.2023 in various installments but failed to pay the interest. The total amount of interest Rs.11,78,940/- and further interest at the rate of 24% till date of realization.  Therefore the OPs are liable to pay Rs.14,32,020/- with further interest at the rate of 24% till the date of realization.  

8. It is further case of the complainant that he is entitled for the recovery of the amount. All the OPs turned deaf ears and deliberately neglected to pay the above said amount and they made the complainant to run from pillar to post even to refund the principal amount. In addition to the insert the OPs have shattered the dreams of the complainant to own an independent villa in Bangalore. Presently the value of the schedule property has been doubled and this complainant have been left in lurch and not in a position to invest in other properties for the breach negligence and deficiency of service committed by the OPs. Hence the OPs are liable to pay compensation and damages to the tune of Rs.5,00,000/-.  The complainant was constrained to issue legal notice and it was duly served on the OPs on 16.10.2023, but the OPs neither replied nor bothered to pay the amount claimed by the complainant. Hence the complainant has filed this complaint.

9. In response to the notice, OPs have not appeared before this commission. Hence OPs placed exparte.

10. The complainant has filed his affidavit evidence and relies on 13 documents. 

11. Heard the arguments of advocate for the complainant. Perused the documents.

12. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OPs?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

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

Point No.1:  Affirmative

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

14. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, affidavit evidence and documents filed by the complainant. Inspite of issue of notice the OPs remained absent. Hence OPs neither challenged the allegations made in the complaint and also documents and they remained unchallenged. 

15. In order to prove her contention the complainant has filed her affidavit evidence and relied on Ex.P1 to P13.

16. It is undisputed fact that the OP1 and 2 have formed a layout in the name and style as Sri Shankara Kaggalipura.  The complainant has agreed to purchase a site No.111 measuring 40X30 feet for a total consideration amount of Rs.29,40,000/- and paid a total amount of Rs.22,20,000/- and entered into a sale agreement on 27.02.2021 as per Ex.P1. The OPs have issued receipt cum acknowledgement in their letter for having received the amount as per Ex.P2 and P3.

17. The OPs without commencing the work they went on giving false assurances to the complainant and later they have executed an absolute sale deed in favour of the schedule property in favour of a third party namely Mr.R.K.Rameshwara Reddy vide sale deed dated 30.12.2021 as per Ex.P4 without giving any intimation to the complainant.  When the complainant came forward to pay the remaining amount of Rs.7,20,000/- and requested for execution of absolute sale deed in her favour. At that time the OPs have informed the complainant that by mistake of fact they have executed the sale deed in favour of the third party and they further agreed to re-register the schedule property in the name of the complainant and failing which they agreed to refund the amount with 10% of advance amount of Rs.2,22,000/- as per clause VII(a) of the sale agreement as per Ex.P1. The OPs have failed to either to refund the amount or to re-register the property in view of the non-co-operation of third party. After that the complainant has approached the Kaggalipura police station and filed complaint as per Ex.P6. Due to the intervention of the police officers, the OP3 came forward either to re-register the property or to refund the amount. When the OPs have failed to re-register or refund the amount the complainant has made several follow-ups and got only the principal amount from the OPs. After that the complainant has got issued legal notice to pay the interest as per Ex.P7. Inspite of service of the notice the OPs have failed to refund the interest amount with interest as agreed by them.  

18. The complainant is claiming the relief to direct the OPs to pay the agreed interest amount of Rs.10,34,158/- along with interest at 24% p.a., from 27.02.2023 till realization and further direction to pay Rs.2,22,000/- i.e., 10% of the earnest money as damages as per clause Villa(a) of the sale agreement Ex.P1 with interest at the rate of 24% p.a., and also Rs.5,00,000/- towards damages with interest at 24% p.a.

19. The conduct of the OPs in executing the absolute sale deed in favour of the third party after entering into the sale agreement with the complainant and after receiving the entire sale consideration clearly discloses that they are fully failed in discharging their respective services and they have committed deficiency of service, unfair trade practices and they have further cheated the complainant and they have disappointed the complainant to have an independent villa as per her dreams in and around the Bangalore city.  The complainant has claimed the interest amount of Rs.10,34,158/- and also Rs.2,22,000/- the 10% of the earnest money as damages as per clause VIII(a0 Ex.P1 sale agreement.  The complainant is entitled for the recovery of the interest amount and also the 10% of the earnest money as per the terms and conditions of the agreement. The complainant is also entitle for compensation of Rs.1,00,000/-.

20. It is pertinent to note here that the future interest of 24% p.a., claimed by the complainant in respect of the refund of the interest amount and also the refund of 10% of the earnest money is on the higher side.  Hence we have decided to award interest @ 14% p.a., on the above said two payments with litigation expenses of Rs.10,000/- to the complainant. Under these circumstances, we feel it is necessary to allow this complaint in part and hence we answer point No.1 in affirmative and point No.2 partly in affirmative.

21. Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. The OPs are directed to pay interest of Rs.10,34,158/- with interest at 14% p.a., from the date of 27.02.2023 till realization and further directed to pay Rs.2,22,000/- (10% of the earnest money as damages as per clause VIII(a)  of Ex.P1) with interest at 14% p.a., from the date of 20.03.2023 till realization.
3. OPs are further directed to pay compensation of Rs.1,00,000/- with litigation cost of Rs.10,000/- to the complainant.
4. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 16% p.a. after expiry of 60 days on Rs.10,34,158/- and Rs.2,22,000/- till final payment.
5. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 23^rd day of FEBRUARY 2024)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;

NIL