Karnataka

Kolar

CC/125/2023

Suman.K - Complainant(s)

Versus

Mr.Pranav Sharma - Opp.Party(s)

30 Jan 2024

ORDER

Date of Filing: 31/08/2023

Date of Order: 30/01/2024

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, OLD D.C. OFFICE PREMISES, KOLAR – 563 101.

Dated:30^th DAY OF JANUARY 2024

SRI. SYED ANSER KALEEM, B.Sc., B.Ed., LL.B., …… PRESIDENT

SMT. SAVITHA AIRANI, B.A.L., LL.M., …..LADY MEMBER

CONSUMER COMPLAINT NO:125/2023

1. Suman. K,

S/o. Krishna A,

Aged about 38 years,

Occu: Advocate,

Pan. No. CGYPS7093F,

Aadhaar No. 871421311862,

 

2)  Mrs. Asha,

D/o Gopal,

Aged abpit 30 years,

Pan No.BFYPA2903C,

Both are residing at: No.114,

Near Sub-jail Kote Kolar.

(Rep. by Sri. B. Kumar, Advocate)                 ….  Complainants.

                                                                                                                - V/s –

1.  Mr. Pranav Sharma,

Promoter & Director,

Aadhaar No.680560288705.

Aged about 30 years,

M/s. Felicity Adobe LLP.

 

2. Mr. Preenand Premachandran,

Aadhaar No. 643716889858,

Aged about 40 years,

CEO M/s. Felicity Adobe LLP.

 

3. Mr. Vineeth M.S. Nair,

Aadhaar No.542493853108,

Major, Promoter,

M/s. Felicity Adobe LLP.

 

4. Mr. Praveen Farnandies,

Aged about 39 years,

HOD of Banking Sector,

M/s. Felicity Adobe LLP.

 

5. Sri. Seema Motha,

Aged about 50 years,

Managing Director,

M/s. Felicity Adobe LLP.

 

All are actively working in Swrna Griha Stage-3, Sy.No.20/1,

Arabhikottanur Village,

Vakkaleri Hobli, Kolar Taluk &Dist.

And also working in business place

HRBR layout, 1^st Block, Kalyan Nagar Post, (Pan No.AAMFT5978L)

Bengaluru-560043.

(Rep. by Sri. M.N. Byrareddy, Advocate)   ….Opposite Parties.                                                                   

 

-: ORDER:-

BY SMT. SAVITHA AIRANI, MEMBER

1. That the complainants have filed this complaint under Section 35 of the Consumer Protection Act 2019 against the Opposite Parties to execute the sale deed concerned to Flat No. C1103 in Block-C of Swarna Griha Apartments infavour of complainants as per agreement and pay the compensation of Rs.15,00,000/- and pay a sum Rs.1,50,000/- towards mental agony and also pay Rs.10,000/-  towards cost.

 

2. The brief facts of the complaint is that, the complainants and his colleague advocates purchased the flats in Opponents apartments M/s. Felicity Adobe LLP (i.e. Swarna Griha-3) which are constructed at Arabhikottanur Village, and also as per request of Ops. The complainants and his colleague advocates were purchased more than 10 Flats from the Ops.  The complainants and Ops were entered into a sale agreement on 03/02/2020.  The residentially converted land in Survey Old No.20 Re-Survey No.20/1(E-katha No. 151900700200620032), measuring 9387.60 Square Meters (out of 2 acres 16.12 guntas) situated at Arabhi Kottanur Village, Vakkaleri Hobli, Kolar Taluk, Kolar District-563133 bounded as follows.

    East By     : Property bearing Survey No.29,

• By      : Property bearing Survey No.11,

North By   : National Highway,

South By   : Property bearing Survey No.21.

Out of it the opponents were constructed the apartments.  The complainants and opponents were entered into the sale agreement concerned Apartment (Flat) bearing No. C1103 having carpet area of 47.38 Square Meters, on Tenth Floor in Block-C, with UDS 190 Sq ft. as permissible right to use car parking and of Pro rata share in the common areas, more fully set out and bounded as follows:

East By              : Flat No. C1102,

West  By            : Driveway,

North  By           : Flat No.C1104,

South  By           :Driveway.

And as per the sale agreement admittedly the complainants were paid the part sale consideration amount of Rs.1,45,450/-  through DD and RTGS to the Ops.

3. Further complainants stated that, the Ops offered to sell the above said flat to the complainants for a sum of consideration Rs.14,54,500/-and OPs were received part advance of consideration amount of Rs.1,45,450/-, Out of said amount Rs.30,000/- through DD.No. 03071 on 06/04/2019 and Rs.1,15,450/-by NEFT before witnesses and assured the complainants to hand over the physical possession of the above said apartment on or before Dec-2021 to the complainants.  The Ops failed to handover the flats to the complainants on agreed date and its shows deficiency in service of Ops.

 

4. Further complainants stated that, the ops already giving the occupation certification to some other persons.  The complainants several time requested the OPs to hand over the above said flat, but Ops have procasting the matter one or other reason.  Hence the complainants issued legal notice on 17/04/2023 to the Ops and on 30/06/2023 and 13/06/2023 ops replied to the notice.  In the replay notice Ops admitted the sale agreement and denied other allegations, after that the complainants also issued rejoinder notice on 24/07/2023.

 

5.  Further complainants stated that, in order to meet unlawful gain and to get more sale consideration Ops  have avoid to execute the sale deed infavour of the complainants.  Hence this complaint.

 

6. On issuance of notice by this commission Ops appeared through their counsel and filed their version.  In the version of the  Ops admitted that, the complainants were entered into an sale agreement  to purchase the flat  from them and paid the advance consideration amount of Rs.1,45,450 /-  out of said amount for Rs. 30,000/- received through DD bearing No. 030701 and Rs. 1,15,450 by way of  NEFT.  The Ops executed sale agreement infavour of complainants.  The Ops also admitted that, according to the sale agreement, they were agreed to hand over the physical possession of the said flat on or before December 2021 and other necessary certificates to the complainants.

 

7. But the Ops contention is that, the delay in handing over possession of the Flat for the reasons restriction imposed during the pandemic resulted in a shortage of available laborers, delay was not by any ulterior motive it’s a unforeseen challenges posed by the global Covid-19 pandemic.

 

8. Further Ops contended that, the complainants failed to make the remaining amount payments within the time bound on several requests made by the Ops. Further Ops contended that, the complainants were completely unreachable by way of telephone, post and emails also. Complainants were deceptively posing the non-compliance of terms of the agreement on his part as there was no deficiency of service by the Ops.
9. Further Ops contended that, complainants did not made any effort to Ops for enquiring about the status of the construction of the above said flat and while the same was in construction or after construction.  The complainants did not approach the Ops for registration of the flat. The Ops to remind the complainants to make the due of payments for the consideration amount for completing the purchase of the above said flat, it was failed.

 

10. Further Ops contended that, Complainants field this complaint after laps of 2 years. And entire allegation made in the complaint i.e., criminal breach of trust, cheating and fraud are baseless.  Hence Ops prays to dismiss the complaint.

 

11. In order to prove the case of the parties both the complainant and the opposite parties have filed their affidavit evidence along with documentary evidence.

 

12. On the basis of the pleadings of the parties the following points will do arise for our consideration.

 

1. Whether the complainant proves that on the part of Ops have committed deficiency of service?
2. Whether the complainant is entitled for the relief as sought in the complaint?
3. What Order?

 

We have heard the arguments of the both parties.  Our answers to the above points are as follows.

 

 

Point No.(1) :-    In the Affirmative.

Point No.(2) :-    In the partly Affirmative.

Point No.(3) :-    As per the final orders for the following.

 

REASONS

13. Point No. (1):- On perusing pleadings of the parties. It is an undisputed fact that the complainants were entered into a sale agreement dated 03/02/202 with the Ops in order to purchase the flat shown in the agreement schedule property. Further it is not in dispute in pursuance of the sale agreement complainants paid Rs. 1,15,450/- and Rs.30,000/- in toto paid Rs.1,45,450/-.  Further it is also not in dispute complainants have to pay remaining sale consideration towards flat as and when demanded by the Ops.  Further ops are agreed to deliver the possession the flat on or before Dec 2021.

 

14.   It is the specific allegation of the complainants are that  the Ops already delivering the possession the flats to some of the purchasers but for the reasons best known to them Ops procasting  in handing over the flat in question despite the request of the complainants.

 

15. Per contra Ops contended that sale consideration is fixed for Rs.14,54,500/-. But the complainants paid advance amount of Rs.1,45,450/- on 06/04/2019  and the Ops agreed to handover the physical possession of the said flat on or before December 2021 and assured the complainants to execute the registered sale deed, but due to pandemic Covid-19 there is some delay in handing over the possession.  It is specifically contended that, complainants were expected to make the payments of remaining consideration amount towards the purchase of the flat as per the milestones set out in the agreement.  It is contended that, despite multiple request made by the representatives of felicity, the complainants had failed to make any payments which was essential for completing the registration of the flat, neither the complainants inform the OPs of the reason of such delay in making of payments.  Hence contended that, such negligence on the part of the complainants resulted in the default on their part and the complainants and hence contended that, there is no deficiency from their part and it is on the part of complainants.

   

16. In order to substantiate the case of the complainants and they have field their affidavit evidence.  On perusal of the affidavit evidence it discloses that complainants have deposed the same facts averred in their evidence.  Further the complainants also relied on the legal notice dated 17/04/2023 issued to the Ops.  On perusal of the legal notice it reveals that complainants through legal notice call upon the Ops to execute the registered sale deed infavour of them. Further alleged that subsequent to issuance of above said legal notice dated: 17/04/2023, Ops without the consent of the complainants refunded the amount of Rs. 1,50,000/- through RTGS on 09/06/2023  which is paid towards advance amount at the time of execution above said sale agreement on careful perusal of the above said legal notice and the date on which the OPs refunded the amount through RTGS to the complainants, and these facts made us to draw inference that the complainants subsequent to issuance of said legal notice refunded the amount it is nothing but after thought.  Furthermore, as shown in the payment schedule i.e reads thus “MODE OF PAYMENT: Subject to the terms of the agreement and the Promoter abiding by the construction milestones, the allottee shall make all payments, on written demand by the Promoter, within the stipulated time. as mentioned in the Payment Plan(Schedule C) through A/C Payee cheque/demand draft/bankers cheque or online payment (as applicable) in favour of “M/s Felicity Adobe LLP” payable at Bangalore. But Ops are not give any written demand to the complainants to pay the balance amount towards the flat sale registration.

 

17.   It is note worthy to mention that, under the payment mode shown by the OPs it is one of the conditions that payment shall be made on written demand by the Promoter, within the stipulated time, however OPs failed to produce any document to show that there is a demand from their side.  Furthermore, OPs without terminating the contract in accordance with law and subsequent to legal notice only refunded the amount paid by the complainants.  Hence OPs cannot rescind the contract unilaterally.  Under the circumstances the act of the OPs is only after thought and on the reason assigned above according to us contract is in existence.  That the OPs prior to refunding the amount, ought to have call upon the complainants to pay the entire sale consideration but the OPs being the service provider no such bonafide attempts were seen or made.  Hence without any hesitation we hold that OPs are deficient in their service.  Accordingly we answered the Point No.1 in the affirmative.

 

18. Point No (2):- Further it is note worthy to mention that, When the matter is posted for orders, on 20/01/2024 Ops filed application along with Memorandum of facts and another application under Order 18 Rule 17 of CPC to recall and reopen the order dated:16/01/2024 to submit the oral arguments along with Written arguments filed.

 

19. Perused the both the I.As along with memorandum of facts. prior to going through the said application we have perused the order sheet, it reveals that since 26/12/2023 the matter is posted for arguments on 05/01/2024, 08/01/2024, 09/01/2024 once again prayer of Ops counsel time is granted matter is posted for to submit the arguments finally on 16/01/2024 and all these dates clearly reveals that though sufficient opportunity extended to the Ops but the Ops failed to submits their arguments and hence oral arguments of OPs taken as heard.  However Ops filed the written arguments and the same is taken on record by keeping interest of the Ops.

 

20. On perusal of the evidence placed on record it is evident that the complainants initially paid Rs.1,45,450/-to the OPs and thereon both parties entered into sale agreement.  Further the complainants admittedly not paid the required installments as shown in the mode of payments but somehow OPs admitted that due to pandemic Covid-19 there is a delay in completing the project and handing over the possession and also there is no such evidence on record there is a demand from the OPs to the complainants to pay the remaining sale consideration amount.  On perusal of the sale agreement dated: 03/02/2020 Complainants only paid Rs.1,45,450/- and he was also not attempted to pay the remaining balance suo moto.  Under the circumstances on careful perusal of the entire evidence placed on record we are of the opinion that the court of justice or any tribunal always give emphasis to strike the balance of equity between the parties and hence though OPs refunded the amount in our view there is no such termination of contract in accordance of law and hence complainants are entitled for the flat which is more fully described in the agreement scheduled.  Further OPs are liable to hand over the possession of the flat and execute the registered sale deed at the cost of the complainants subject to payment of entire sale consideration along with interest at the rate of 9% P.a to the OPs from 01/01/2022 to till execution of the sale deed.  However, complainants did not placed any cogent evidence on record in order to award compensation and there is some negligence on his part in paying the amounts and hence complainants are also not entitle for the cost.  Accordingly we hold Point No.2 in the partly affirmative.

 

21. Point No. (3):- On the basis of discussion and reasons assigned while answering Point No.(1)&(2) and thereon we proceed to pass the following order:
6698606.  

 

1. Complaint is hereby allowed partly. No order as to cost.
2. That the OP.No. 1 to 5 of M/s. Felicity Adobe LLP are hereby directed to deliver the possession of the Apartment No.C-1103 having carpet area of 47.38 Square Meters, Block C on 10^th Floor as shown in the Schedule–B of the agreement dated: 03-02-2020, subject to payment of entire sale consideration by the complainants to an extent of Rs.14,54,500/- along with interest at the rate of 9% P.a from  01/01/2022 to till realization.
3. Further OP.No.(1) to (5) or their authorized person execute the sale deed in favour of the complainants in respect of the agreement schedule property within two months.
4. Further OP.No.(1) to (5) and the complainants are directed to comply the orders shown at (2) & (3) within 60 days from the date of receipt of this order and submit the compliance report within 75 days.
5. Send a copy of this order to all the parties to the proceedings at free of cost.

       (Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us on this 30^th DAY OF JANUARY 2024)

 

 

    MEMBER                                    PRESIDENT