C.C  Originally filed on: 14.05.2012

C.C. taken on record after remand  24/02/2016

 Disposed on:08.07.2016

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, TUMKUR

DATED THIS THE 8^th DAY OF JULY –  2016

C.C. No. 59 OF 2012

:PRESENT:

SMT. PRATHIBHA. R.K. BAL LLM. PRESIDENT,

SRI. D. SHIVAMAHADEVAIAH, B.A. LLB,  MEMBER

SMT. GIRIJA, B.A. LADY MEMBER

COMPLAINANT/S:

Mrs. Nazhat Kausar  W/o Mr.Shaik Saleem,

Aged about 42 years, Resident of  Door No.15,

1^st Floor, 19^th Cross, Behind Akshaya Residency,

Nagawara Junction,  Bangalore – 560 045,

Now R/at C/o Urooj Pasha, House No.61,

Channappanna Palya, Upparahalli, Tumkur.

  (By Smt/Sri.Mohamed Afroze Ahamed – Advocate)

-V/s-

OPPOSITE PARTY/IES

Mr. S.Abdul Wajid S/o Late Abdul Subhan,

Aged about 72 years,

Prop. Bharath Aluminium Factory,

Upparahalli, Tumkur.

  (By Smt/Sri. K.C.Venkatesh – Advocate)

:-O R D E R:-

SMT. PRATHIBHA .R.K. - PRESIDENT

The complainant has filed this complaint Under Section 12 of the Consumer Protection Act 1986 against the OP alleging deficiency in service on the part of OP and prays to direct the Opposite Party to pay Rs.4,00,000/- i.e. double the earnest advance amount of  Rs.2,00,000/- as liquidated damages as per the conditions of the agreement of sale dated 26/.10.2009 along with interest @ 24% from 26.10.2009 to till realization of the entire amount and Rs.50,000/- towards travelling charges, damages, pain and agony and further prays to direct the OP to pay cost, compensation and such other relief/s as the Hon’ble Forum deems fit to grant in the interest of justice.

The brief facts of the complaint is as under:-

2.       The complainant submitted that the OP is the owner of Site No.11 formed in Mydala Amanikere Village Sy.No.97 and 98/6 measuring East to West 40 Feet (12-00 Meters) and North to South 30 Feet (09-00 Meters) i.e. 40’ X 30’ situated at Mydala Amanikere, Urdigere Hobli, Tumkur Taluk. 

          The complainant further submitted that the OP has offered the schedule site for sale for a total sale consideration of Rs.3,60,000/- and the complainant accepted the same and paid the advance of Rs.2,00,000/- in cash to the OP and in that regard complainant and OP entered into sale agreement dated 26/10/2009.  It is further submitted that the OP has assured the complainant that the above schedule site is free from encumbrances, litigations, attachments, lien and also free from any subsisting agreement of sale to any other person. 

          The complainant further submitted that the balance amount of Rs.1,60,000/- to be paid to the OP at the time of registration of the sale deed of the schedule site property.  The above said sale transaction will be completed only after fulfilling the terms and conditions of the DC Order bearing No.ALN (TMK)CR-164/2008-09 for forming approved layout i.e. within a period of six months from the date of this agreement of sale.

          The complainant further submitted that after several requests and demands and personal visits to the OP, the OP avoided to get the registered the sale deed of the schedule site property.  Hence, the complainant issued a legal notice dated 10/05/2011 to the OP calling upon the OP to execute the proposed sale deed in favour of the complainant within 30 days from the date of receipt of the said notice dated 10/05/2011.

          The complainant further submitted that even after lapse of 2 ½ years of executing the sale agreement by the OP, the OP has failed to comply the above terms and conditions of the sale agreement dated 26/10/2009.  Hence, with no other alternative, complainant filed this complaint.    

3.       This Forum has passed the order in the said case in favour of the complainant.  Thereafter, the complainant filed E.A. before this Forum.  Due to non-appearance of the OP in the E.P., this Forum got issued warrant against the OP.  Thereafter, the OP has filed an appeal before the Hon’ble State Commission.  The Hon’ble State Commission has set aside the order of this Forum in C.C.No.59/2012 on 05/02/2016 as under:-

          ” The above appeal is allowed on payment of cost of Rs.10,000/- impugned order dated 06/07/2012 in Consumer Complaint No.59/2012 on the file of District Consumer Disputes Redressal Forum, Tumkur is hereby set aside and matter is remanded to the District Forum to provide an opportunity to the Appellant to contest the case on merits and the District Forum is directed to decide the matter afresh by giving opportunity to both the parties and permit the OP to file its version and to adduce evidence.

As the case is of the year 2012, the District Forum is directed to dispose of the matter within 03 months from the date of appearance of the parties.

As both the parties are duly represented, they are directed to appear before the District Forum on 01.03.2016.

Out of the amount deposited by the Appellant, a sum of Rs.10,000/- shall be released in favour of Respondent/complainant and balance amount shall be refunded to the Appellant.   

4.       After remand, this Forum has issued notice to both parties, Thereafter the OP appeared through counsel, but has not filed version and affidavit evidence though sufficient opportunities given to the OP and thereafter the OP remained absent.  The complainant filed written arguments.  Heard the complainant and then posted the case for orders.  

5.       The points for consideration is as under:-

1. Whether there was deficiency in service on the part of the OP as alleged by the complainant?

2. Whether the complainant is entitled for the relief/s as claimed in the complaint?

3. What Order?   

6.       Our answer to the above issues are as under:-

Issue No (1)          :        In the Affirmative

Issue No (2)          :        Partly in the affirmative  

Issue No (3)                    :        As per final order below

                          :-REASONS:-

Issue No. (1):-

7.       The complainant in his affidavit has firmly stated that the OP is the owner of site No.11 formed in Mydala Amanikere Village Sy.No.97 & 98/6 measuring E-W 40’ and N-S 30’ situated at Mydala Amanikere Urdigere Hobli, Tumkur and the OP has offered schedule revenue site for sale for a total sale consideration of Rs.3,60,000/-.  Accordingly, the complainant accepted and paid advance of Rs.2,00,000/- in cash.  Further, the complainant has firmly stated in his affidavit stated remaining amount of Rs.1,60,000/- will be paid at the time of registration of sale deed of the schedule site property.

8.       Further, the complainant has firmly stated in his affidavit that even after lapse of 2 ½ years of executing the sale agreement by the OP after receiving a sum of  Rs.2,00,000/-, has failed to execute the sale deed and thereby committed deficiency of service.

9.       Further, at the time of arguments, the complainant submitted that, the OP has made submission before the Hon’ble State Commission that they are ready to settle the matter amicable and prays time for settlement.  The complainant produced the order-sheet of Hon’ble State Commission.  On perusal of the order sheet it is clearly mentioned that the OP has taken time for settlement.  Thereafter the OP has not settled the matter, but OP had argued the matter before the Hon’ble State Commission and the Hon’ble State Commission after hearing the matter remanded the case for fresh disposal to provide an opportunity to the Appellant to contest the case on merits and decide the matter afresh by giving opportunity to both the parties and permit the OP to file its version and to adduce evidence.                            

10.     After remand, this Forum has given sufficient opportunity to the OP.   The OP after receipt of the notice appeared before the Forum and later did not file his version or evidence in spite of giving sufficient opportunities.  Under the circumstances of the case, the evidence of the complainant stands un-disputed and the evidence of the complainant goes un-challenged.  Further, the weight of the evidence is on the side of complainant.  Further, on the basis of the oral and documentary evidence it is proved that the OP has committed deficiency of service and thereby deprived the complainant by dodging the matter.  Hence, on the above discussion and looking from any angle, we are of the considered view that the OP has committed deficiency of service.  Accordingly, we answer the point No.1 in the Affirmative.

Issue Nos.(2) & (3):-

11.      The complainant prays to direct the OP to pay Rs.4,00,000/- i.e. double the earnest advance amount as per the terms and conditions of the sale agreement dated 26/10/2009 along with 24% interest from the date of sale agreement till realization.  The complainant has produced sale agreement as Ex.C1.  We have perused the agreement of sale, wherein at Page No.3 in Para No.4 it is written as under:-

“ If the Vendor fails to sell the schedule property subject to the aforesaid terms and conditions, the vendor hereby agrees to refund the earnest/advance money so received from the purchaser together with a like sum (double amount) as liquidated damages”.

12.     No doubt, the complainant has paid Rs.2,00,000/- to the OP and the OP has not complied the terms and conditions of the sale agreement.  Therefore, the complainant is entitled for Rs.4,00,000/- as per the terms and conditions of the agreement along with 9% interest from 14/05/2012 to till realization.   Further, the complainant prayed Rs.50,000/- towards travelling charges, mental agony, pain and sufferings.  Of-course, in the case on hand the OP has not acted upon the terms and conditions of the sale agreement and thereby put the complainant in stress as the complainant has paid Rs.2,00,000/- long back.  But, the interested awarded on Rs.4,00,000/- itself suffice the complainant.  Hence, we decline to award any compensation to the complainant.  Further, the complainant is entitled for the cost of Rs.5,000/-  as the complainant was compelled to approach this Forum by filing this complaint for redressal purely on account of deficiency of service on the part of OP.  Accordingly, we proceed to pass the following:-

:- ORDER:-

1. The complaint filed by the complainant is hereby allowed in part with cost of Rs.5,000/- (Rs.Five Thousand Only).
2. The OP is directed to pay Rs.4,00,000/- to the complainant along with interest @ 9% PA from the date of filing of original complaint i.e., 14/05/2012 to till realization.
3. Further, the OP is directed to comply the above order within 30 days from the date of knowledge/receipt of the order.
4. Communicate the order to both the parties. 

(Dictated to the stenographer, transcribed and typed by him, then corrected and pronounced in the open Forum on this the 8^th Day of JULY 2016).

LADY MEMBER                      MEMBER                            PRESIDENT