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

DATED 16^th DAY OF FEBRUARY 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. This is a complaint filed under Section 35 of C.P.Act, 2019 for the following reliefs:-

(a) Direct the OPs to refund the amount  of Rs.61,12,401/- + 10% interest on the payable amount including bank loan interest of Rs.3,88,164/- from the date of payment to the date of closure of the issue and cost of indicating this legal action.

(b) Direct the OPs to pay an amount of Rs.1,00,000/- towards harassment and mental agony and hardship, including litigation charge of Rs.10,00,000/-.

(c) Direct the OPs to reimburse costs of this proceeding and pass such other orders/relief, as this Hon’ble Forum deems fit and proper in the light of facts and circumstances of the case and in the interest of justice and equity.

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

Late Abhishek Singh son of the complainant entered into agreement of sale and construction agreement on 19.08.2015 with OPs for consideration of Rs.1,08,48,739/- to purchase flat No.2304.

3. Son of the complainant lost his breath on 17.07.2017. Daughter-in-law of the complainant i.e. wife of the Late Abhishek Singh with an intention to grab the property committed the murder of her husband.  Whitefield Police issued UDR report.  Later on private complaint has been in 1^st ACJM Court Bangalore Rural of PCR No.540/2018 against wife of Abhishek Singh and four others.  Therefore, Mrs.Prashansti Shree lost her right over the property in her name as per Section 25 of Indian Succession Act, 1956. The private complaint has been converted as Crime No.425/2018.  It is further case of the complainant that her son expressed his desire to get the diverse from his wife and he wanted to join his parents. Meanwhile, the daughter-in-law of the complainant and four others committed the murder of Abhishek Singh.  After the death of Abhishek Singh, the complainant called upon the OPs to refund earnest money of Rs.61,12,401/- including interest from the date of payment.  But, OPs failed to comply the request of the complainant.  This act of the Ops amounts to deficiency of service.  Therefore, OPs are liable to pay Rs.11,00,000/- as compensation. 

4. After receipt of notice, the OPs appear and file version.  The complaint is neither maintainable in law or on facts.  They admit that sale agreement and construction agreement dated 19.08.2015 and payment of Rs.61,12,401/-.  But, Abhishek Singh and complainant failed to pay the balance consideration amount.  Even though, site was ready for occupation in May, 2018.  But, complainant failed to pay balance amount of Rs.47,36,338/- on 21.01.2019 and also failed to take possession of the flat.  There is no deficiency of service on the part of OPs.

5. Late Abhishek Singh availed housing loan from M/s Axis Bank Ltd., who have initiated recovery proceedings at OA No.793/2019 on the file of Debt Recovery Tribunal II, Bangalore against Abhishek Singh, his wife and OPs. The bank claimed Rs.32,34,720/- as on 09.02.2018 in the said proceedings.  The complaint is bad for non-joinder of necessary parties. There is no cause of action to file this complaint. They do not aware that wife of Abhishek Singh lost her right over the schedule property.  They request to dismiss the complaint.

6. The complainant has also files application under Section 5 of Limitation Act to condone the delay of two years. 

7. It is stated in the supporting affidavit that the delay is neither willful nor negligence.  Due to filing of criminal case against the accused and due to Covid-19 pandemic disease and also as per SOP, there is a delay of two years in filing this complaint.  The delay is bonafide.  If the delay is no condoned, the complainant would put the irreparable loss.

8. The complainant filed her affidavit evidence and relies on documents.  The OPs filed the affidavit evidence of their official and rely on two documents. Perused the written arguments and heard the arguments of advocate for complainant only.   .

9. The following points arise for our consideration:-

1. Whether the complainant shows the sufficient cause to condone the delay in filing the complaint?
2. Whether the complainant proves deficiency of service on the part of OPs?
3. Whether the complainant is entitled to reliefs mentioned in the complaint?
4. What order?

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

       Point No.1:-  In the affirmative.

      Point Nos.2 and 3:- Partly in the affirmative.

      Point No.4:-per final orders

REASONS

10. Point No.1: Even though, application filed under Section 5 of Limitation Act along with complaint to condone the delay of two years in filing the complaint.  It is settled preposition of law that mere citing of wrong provision of law does not enable this Commission to dismiss the I.A. for condonation of delay on technical grounds.
11. The complainant has specifically spelled out in para 4 of the complaint that due to filing of criminal case against the accused, Covid-19 pandemic and circumstances of SOP, there is a delay of two years in filing the complaint.
12. It is admitted fact that Abhishek Singh son of the complainant had applied for allotment of flat with OPs in the year 2015.  But, Abhishek Singh died on 17.07.2017.  Death certificate indicates that Abhishek Singh died on 18.07.2017.  But, in the meanwhile the husband of the complainant set the criminal law into motion by filing the complaint on 06.08.2018 and police have registered the case at Crime No.425/2018 against five persons including widow(wife) of Abhishek Singh.  The complainant by issuing legal notice dated 23.05.2020 called upon the OPs to refund Rs.61,12,401/- with interest at 10% p.a.  This complaint came to be filed on 28.09.2020.  The Hon’ble Supreme Court of India has extended the limitation w.e.f. 23.03.2020 due to Covid-19.  In view of death of Abhishek Singh, setting the criminal law into motion, due to Covid-19 and SOP issued by the Hon’ble Supreme Court of India, the complainant has shown sufficient cause to condone the delay.  Accordingly, delay is condoned.
13. Point Nos.2 and 3:- These two points do warrant the common course of discussion. Both the parties have filed affidavit evidence and relied on documents in respect of their respective contention.
14. At the first instance, we would like refer the admitted and proved fact.  OP No.1 is the developer and OP No.2 is the authorized signatory.  Document No.1 is letter dated 28.10.2015 issued to Abhishek Singh son of the complainant.  According to this letter, the value of the site measuring 1655 sq.ft. was Rs.93,61,121/-.  The OP No.1 called upon the Abhishek Singh to pay the outstanding due installment amount of Rs.33,19,291/-.  The statement of account indicates payment of installments.  OP No.1 also issued letter dated 24.07.2017 calling upon the Abhishek Singh to pay the amount of Rs.23,27,051/-.  Document No.A4 is issued by OP No.1 to Abhishek Singh showing balance payable Rs.37,88,915/- on 30.04.2018.  Document No.A5 is also statement about the total transaction of Rs.37,29,064.26.  Document No.A6 is the letter of HDFC Bank to Abhishek Singh.
15. According to the complainant, her son Abhishek Singh met with unfertile incident on 17.07.2017 and White Field police registered UDr under Section 174 Cr.P.C.  This fact has been proved from document No.A7.  Later on Vivek Singh brother of the deceased Abhishek Singh lodged a complaint about death of his brother.  However, it is proved from document No.A8 to 12 that on the basis of private complaint, the learned Additional CJM, Bengaluru referred the matter to the police who registered the case at Crime No.425/2018 against five persons including Prathista Shree who is widow of Abhishek Singh i.e. daughter-in-law of the complainant.  The marriage of Abhishek Singh with Prathista Shree came to be registered on 28.11.2013.  The death extract of Abhishek Singh indicates that Abhishek Kumar Singh died on 18.07.2017.
16. By issuing legal notice dated 23.05.2020, the complainant called upon the OPs to refund Rs.61,12,401/- with interest at 10% p.a.  Despite receipt of this notice, the OPs failed to refund the amount.
17. The complainant claims refund of entire amount with interest and compensation from OPs stating that Prathista Shree wife of Abhishek Singh being the murderer is excluded from succession and she relies on Section 25 of Hindu Succession Act, 1956.  We would like to refer Section 25 of Hindu Succession Act, 1956 and it is rely by the advocate for the complainant at later stage.
18. According to the OPs, son of the complainant failed to pay the balance amount of Rs.47,36,338/- and even though, the OPs were ready to deliver the possession, but neither balance amount is paid nor complainant came forward to take possession.  The OPs admit receipt of Rs.61,12,401/- out of the agreed amount.  It is also one of the contention of the OPs that Abhishek Singh had availed part of housing loan from Axis Bank Ltd., Lalbagh Road Branch who have filed OA 793/19 on the file of Debt Recovery Tribunal-II, Bengaluru against Abhishek Singh, Prathista Shree and OP No.1 claiming Rs.32,34,720/-.  The complainant has not whispered this aspect either in her complaint or in her affidavit evidence.  The complainant also does not dispute pendency of the proceedings before the Debt Recovery Tribunal-II, Bengaluru against her son, her daughter-in-law and OP No.1.  The OPs have produced two documents.  Document No.1 is the copy of the application filed by Axis Bank Ltd., against Abhishek Singh, Prathista Shree and OP No.1 for recovery of Rs.32,34,720/-.  It is true that on the date of filing OA 793/2019 Abhishek was no more.  However, his wife being OP No.2 in OA 793/2019 filed a written statement admitting her husband taking loan.  It means, out of Rs.61,12,401/- paid to the OP No.1, an amount of 30,97,175/- was released from Axis Bank Ltd., and on the date of filing an application before Debit Recovery Tribunal-II, Bengaluru sum of Rs.32,34,720/- was due in respect of loan taken by Abhishek Singh.
19. The complainant and OPs for the reasons best known to them, have not produced the copy of the sale agreement and construction agreement dated 19.08.2015.  When the Axis Bank released amount of Rs.30,97,175/- in respect of the flat, Abhishek Singh paid only pay amount of 60,12,401/- -  30,97,175 = Rs.30,15,226/- to OP No.1.  When the Axis Bank made payment of Rs.30,97,175/-, the complainant is not right in saying that she is entitled to refund Rs.61,12,401/-.  When the OPs admit receipt of Rs.61,12,401/-, it must have received an amount of Rs.30,97,175/- from Axis Bank.  OPs have also not produced copy of the tripartite agreement between Abhishek Singh and Axis Bank Ltd., to ascertain the rate of interest.  The OPs have not produced any legal notice calling either complainant or Abhishek Singh to pay the balance or otherwise, they will entitled to forfeit the amount paid.  Under such circumstances, the Ops have no right to retain the amount.  The OPs never called upon the complainant to pay the balance amount and they were ready to execute the registered sale deed.  Under such circumstances, the non-refund of atleast balance amount of Rs.61,12,401/- - 30,97,175 = 30,15,226/- amounts to deficiency of service.
20. The counsel for the complainant placing reliance on the decision of Appeal No.358/2017 in the matter between– Jaya Talakshi Chheda Vs. Tanuja Jayantilal Bhagat and two others and referring Section 25 of Hindu Succession Act, 1956 vehemently argues that wife of the Abhishek Singh being the murderer is excluded from claiming the amount.
21. We carefully perused the facts and ratio involved in the above decision.  In the above decisions, wife of deceased, appellant Jaya Talakshi Chheda married with Suresh K.Bhagat on 19.02.1979.  The appellant was convicted by Sessions Court.  Even though, it was held that judgement of Criminal Court is not binding on the Civil Court. But, the trial was ended in conviction.  But, in this case, there is no conviction judgement against Prathista Shree.  Under such circumstances, it is relevant to refer Section 25 of Hindu Succession Act, 1956 which read thus:-

25. Murderer disqualified:- A person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession of which he or she committed or abetted the commission of the murder.

Synopsis 5:- Widow acquitted from the charge of murder – she is not disqualified from the inheritance:- In Section 25 of the Act a person who commits murder or abets the commission of murder shall be disqualified from inheriting the property in furtherance of the succession to which he or she committed or abetted the commission of the murder.  This general disqualification provided in Section 25 is applicable to all persons to the extent it is applicable to them but is not limited merely to a widow.  In the present case, admittedly, widow has been acquitted.  That acquittal is final for the purpose of Hindu Succession Act.  She was, therefore, rightly substituted as legal representative in place of her deceased husband.

22.  The above section gives an indication that a person who commits murder or abet commission of murder shall be disqualified.  But, in the case on hand, only police have registered FIR against Prathista Shree wife of Abhishek Singh and four others for offence including offence punishable under Section 302 IPC. The question arise mere registration of FIR for offence punishable under Section 302 IPC debars Prathista Shree.  The guilt of Prathista Shree is yet to be proved.  Under such circumstances, it is not proper to apply Section 25 of Hindu Succession Act, 1956.  Except allegation, there is no concrete evidence before us that Prathista Shree has either committed murder of her husband or abetted other accused in commission of murder of her husband.  This fact cannot be decided in this proceeding.  However, there is a deficiency of service on the part of OPs.  Under such circumstances, OPs are liable to refund only Rs.30,15,226/- out of Rs.61,12,401/- with interest.
23. The Similar question was came up for consideration, the Hon’ble High Court of Karnataka and Hon’ble High Court of Delhi in the following two decisions:-

1. ILR 2001 KAR 4574 in the matter between G.S.Sadashiva and another Vs. M.C.Srinivasan and others.
2. AIR 1977 Delhi 97 in the matter between Chamman Lal Vs. Mohan Lall and others.

24. Even though, in both the cases the provisions of Hindu Succession Act more particularly of Section 25 of Hindu Succession Act came for consideration.  In the first decision, the husband was acquitted from the charges of committing an offence punishable under Section 308, 498(A).  But, in the present case on hand trial is yet to be commenced.  After filing the charge sheet against Prathista Shree widow of deceased Abhishek Singh. Under such circumstances, Section 25 of Hindu Succession Act is not applicable at this stage.
25. counsel for the complainant also relies the following four decisions:-

1. Civil Appeal No.6239/2019 – Wg.Cdr.Arifur Rahman Khan and Aleya Sultana and others Vs. DLF Southern Homes Pvt. Ltd., with Civil Appeal No.6303/2019.
2. Consumer complaint No.379/2019 dated 22.01.2020 – Parminder Kaur Vs. Punjan Urban Planning and Development Authority, PUDA, Bhavan.
3. The Hon’ble National Commission reported in Shalabh Nigam Vs. Orris Infrastructure Pvt. Ltd., and others dated 06.05.2019.
4. The National Commissioner reported in R.V.Prasannakumar and 47 others Vs. Mantri Castles Pvt. Ltd., dated 08.06.2018.

26. We carefully perused the facts and ratio involved in the above decisions, there was delay in delivery of possession.  Under such circumstances, interest was awarded from the date of payment.  But, in this case, neither sale deed executed nor question of delay in delivery of possession arises.  None of these decision are applicable to the present case on hand.  But, principal laid down in the above decision are relevant only for imposing interest.  According to Ex.B.1 Axis Bank letter, interest at 12% p.a., The complainant called upon the OPs by issuing legal notice dated 23.05.2020.  Despite receipt of notice, OPs failed to refund the amount.  Under such circumstances, the OPs are liable to pay interest at 10% p.a. from 23.05.2020 till realization.  Unless the guilt of the wife of the deceased Abhishek Singh is proved, the complainant and her daughter-in-law are entitled to refund of Rs.30,15,226/- with interest from 23.05.2020.  Even though, Prathista Shree is not a party to this proceeding.  But, in order to avoid the further complication, it is necessary to direct the OPs to refund Rs.30,15,226/- with interest at 10% p.a. from 23.05.2020.  The balance amount with agreed rate of interest to be deposited by OPs in OA 793/2019 which can be paid to the concerned after the decision in OA 793/2019.  There are no circumstances to disbelieve the say of the complainant about deficiency of service on the part of OPs.
27.  Point No.4:- In view of discussion referred above, the complaint requires to be allowed in part.  The OPs are liable to refund Rs.30,15,226/- with interest at 10% p.a. from 23.05.2020 to the complainant and her daughter-in-law by depositing the same before this Commission.  OPs shall deposit balance amount with agreed rate of interest in OA 793/2019 amount to be paid as per the order to be passed by Debt Recovery Tribunal-II, Bengaluru.  The complainant has engaged service of advocate, the cost of litigation is quantified at Rs.10,000/-.  When we are awarding interest, the complainant is not entitled to compensation.   Hence, we proceed to pass the following 

  O R D E R

1. The complaint is allowed in part.
2. OPs shall deposit Rs.30,15,226/- with interest at 10% p.a. from 23.05.2020 before this Commission which will be paid to the complainant and her daughter-in-law.
3. The OPs shall deposit the balance amount with agreed rate of interest in OA No.793/2019 before Debt Recovery Tribunal-2, Bengaluru. 
4. OPs shall pay Rs.10,000/- towards litigation cost to the complainant.
5. The request of the complainant for compensation is rejected.
6. The OPs shall pay interest at 10% p.a. on the amount payable to complainant and her daughter-in-law from 23.05.2020 till realization.
7. The OPs shall comply this order within 60 days from this date.   
8. Furnish the copy of this order and return the documents to the complainant with extra pleadings.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 16^th day of February, 2022)

Documents produced by the Complainant which are marked as Ex.A.1 to Ex.A.17:

Documents produced by the OPs which is marked as Ex.B.1 and Ex.B.2