BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)

DATED:_10^th April 2023

PRESENT

HON’BLE Mr. JUSTICE HULUVADI G. RAMESH: PRESIDENT

Mr. KRISHNAMURTHY B. SANGANNANAVAR: JUDICIAL MEMBER

Mrs. DIVYASHREE M: LADY MEMBER

CONSUMER COMPLAINT No.415/2018

1. Sudhir Venkata Sudharshana Maddi

@ M.V.S Sudhir,

S/o. Maddi Venkata Subba Rao,

Aged about 52 years

R/a D-202 , Radhagovind Apartment,

Opp. Dheeraj Savera

Near Siddartha Nagar,

Borival East, Mumbai……Complainant/s

(By Mr. Mariappa Advocate for these Complainant)

-Versus-

1. M/s Highlife properties

        A partnership firm,

Regd. Office at:

1^st Floor, Shri Nimishamba complex,

Hennur Road Junction,

Outer Ring road, Kalyana Nagar post,

Bangalore-560043

Rep. by its owner

Mr. Salman Iqbal

Also at :

M/s.  Highlife Properties ,

Pent House (PH-2) ,81H colony,

1^st stage, 3^rd cross ,Indira Nagar

Near Pristine Public School,

Near Masjid-E Ummul Hasnain,

Bengaluru-560038

Rep. by its Partner

Mr. Salman Iqbal

2. Mr. Salman Iqbal

Partner ,

M/s Highlife Properties,

Pent House (PH-2), 81H Colony,

1^st Stage, 3^rd Cross, Indira Nagar,

Near Pristine Public Scholl,

Near Masijid- E- Ummul Hasnain,

          Bengaluru-560038

3.   Smt.Ayesha Salman

      Partner,

M/s Highlife Properties

Pent House (PH-2) ,81H colony,

Near Pristine Public Schol,

Near Masijd E-Ummul Hasnain,

BENGALURU-560038

                                 ..Opposite party/s(Ex parte)

//ORDER//

BY Mrs. M.DIVYASHREE : LADY MEMBER

1. This is a complaint  filed under section 17 of  Consumer Protection Act, 1986 against the Ops alleging the deficiency in service and prays for orders:-

To direct the opposite party to pay an amount to the tune ofRs. 29,20,000/- with 18 % interest annually till the date of realization, along with a sum of Rs.20,00,000/- as damages for the deficiency in-services of the opposite party.

2. On admission of this complaint, notice of complaint is ordered on Ops , however could not be possible to serve the notice in an ordinary manner, as such served with paper publications,  complainant has taken substituted service under Order V Rule 20 of Cpc for service of notice to the Ops in ‘Kannada Prabha’ and Indian Express on   03-08-2022.  Yet Ops remained absent and the commission held, service by way of paper publication is sufficient, accordingly Ops are thus placed ex-parte.

3.  The complainant submitted his affidavit evidence along with Ex-C1 to C21, In support of his case during the course of enquiry.  It is to be noted herein that Cp act is a law enacted with an object to protect the interest of consumer and the procedure to be followed.

4.  In view of  enquiry conducted by the commission, on examination of  contents of complaint, affidavit, Ex-C1 to C21, commission to decide on the alleged deficiency in service on the part of Ops and if it is shown, to decide what reliefs could be granted in favour of the complainant.

5. It is the case of complainant that, opposite party No.2 and 3 are running a partnership firm in the name of  M/s . Highlife Properties, i.e. opposite party No.1 in this complaint.  The opposite parties represented that they are builders and Developers who are into construction  and housing business, and subsequently complainant states that the OPs have mislead and misrepresented to him by indulging in false promises and assurances of selling the immovable property belonging to the Opposite party, in Chagalatti Village, Jala Hobli, Bangalore North Taluk, which is morefully described in the schedule herein below.

That Opposite party No.2 represented to the Complainant that they, i.e opposite party No.2 and 3, are the owners and developers of the Schedule Property, which belongs to Opposite party No.1, that is, the Partnership Firm, and that it is located in a layout known as ‘’Asha Green Rich Country’’

6. The complainant further states that the opposite parties represented to him that the total cost of the said plot of land is Rs.38,00,000/-. Further more the complainant states that he has paid a part of sale consideration, an acknowledgement of which has been produced in the form of a “Booking form” vide Ex.C1 produced before this commission. 

7. Complainant is an consumer and with an intention of owning a site he had entered into an agreement of sale with the opposite party and the nature of the work of the opposite party was of ‘’Service‘’. However the complainant submits that, these promises and representations were absolutely false, resulting in ‘’ Deficiency ‘’ on part of the Opposite party and also the opposite party have indulged in unfair trade practices in order to gain unjust enrichment.

8.  The complainant further submits that, the opposite parties executed an agreement of sale dated 06.02.2015 along with the complainant. The opposite party had agreed and promised to execute the sale deed of the site in favour of the complainant, the said agreement of sale has been produced vide Ex-C2 before this commission.

9. On perusal of the page 1 of the agreement of sale executed between the opposite parties and the complainant reads as hereunder:

Whereas, the vendor is the absolute Agreement Holder of the schedule property bearing vacant Site No. 48 of measuring 4000 Sq Ft. Which is formed in SY:63 Which is acquired wide Registration Document no BNG (U) YLNK 15367 2006/2007 Subject Site No.48 comes under the Layout formed and named in the name and style of ASHA GREEN RICH COUNTRY, Situated at Chagalatti Village, Jala hobli, Bangalore North Taluk.

10.  On further examination of the agreement, whereas on the assurance of the opposite parties, that they have got good and marketable title over the schedule property and got full and absolute right to execute this Sale Agreement. The vendor/opposite party declares that expect the vendor none else have got any manner of right, title, claims, and ownership, whatsoever over the Schedule property. Further on perusal of page 4 of the agreement, it is the terms of the agreement that the opposite parties assures the complainant reads as hereunder:

1. The vendor/opposite party assures the purchaser/complainant that the schedule detailed property is free from all types of encumbrances, notices, minor claims, court attachments, litigations, Liens etc.., and further assures that in future, if any defect of title arises the vendor will set right the same to the entire satisfaction of the purchaser and hereby indemnifies the purchaser.
2. The vendor/opposite party has agreed to produce all revenue records, khata, tax paid receipts etc., in respect of schedule property before executing and registering the sale deed. And the vendor has agreed to execute the sale deed in the name of purchaser/complainant.
3. Whereas, both the parties reserve their right to specific performance of this agreement. In case any party fails to do their part of duty as said above, the aggrieved party can sue for specific performance of this agreement and in such an event the defaulter shall be held responsible for payment of all costs, consequences, damages, etc. 
4. Whereas, the Vendor/opposite party assures the purchaser/complainant that the Vendor will be liable to indemnify the purchaser for all the damages if any causes to the purchaser in case of any defect in title with respect to the schedule property.

11. On further perusal of the agreement, it is shown that the opposite parties is in need of funds for the Development and other legal necessities and has decided to sell the schedule detailed property, free from all types of encumbrances. The opposite parties and the complainant have discussed and agreed that total sale consideration amount of the Schedule property totally for a Sum of Rs.38,00,000/-(Rupees Thirty Eight Lakh Only). 

1. Rs. 2,00,000/- (Rupees Two Lakh Only) by the way of RTGS, RTGS No UTR No KKBHK13238834185, Drawn on Kotak Mahindra Bank Dated: 26-08-2013.
2. Rs.5,00,000/- (Rupees Five Lakh Only) by the way of RTGS, RTGS No UTR No KKBHK13257626684, Drawn on Kotak Mahindra Bank Dated; 14-09-2013.
3. Rs.3,00,000/- (Rupees Three Lakh Only) by the way of RTGS, RTGS No UTR No KKBHK13259639613, Drawn on Kotak Mahindra Bank Dated: 17-09-2013
4. Rs.5,20,000/- (Rupees Five Lakh Twenty Thousand Only) by the way of RTGS, RTGS No UTR No KKBKR52014122700619953, Drawn on Kotak Mahindra Bank Dated: 27-12-2014. And the balance amount of Rs.22,80,000/- (Rupees Twenty Two Lakhs Eighty Thousand Only) will be paid on or before 90 days from the date of Sale Agreement for Registration.

Whereas on the assurance of the opposite parties, that the property is free from all types of encumbrances, the complainant has paid the advance amount of Rs.15,20,000/- (Rupees Fifteen Lakhs Twenty Thousand Only).

12. The Complainant specifically alleges that, pursuant to the receipt of above payments, the opposite party have willfully failed and neglected to execute the sale Deed.  The complainant states that he communicated and expressed concern regarding this delay multiple times in the form of E-*mails, registered letters, etc. to no avail. The correspondences have been produced before this commission vide Ex-C3 to Ex-C9. Further the opposite party assured the complainant that they will manage the entire process on the basis the complainant  had entered into the said agreement of sale and paid part consideration.  Moreover complainants have complied with his part of contract, but the opposite parties has expressed inability to register the schedule property in complainant name. complainant have also gained knowledge that the Schedule property was never owned by the opposite party and they had, with dishonest intent, committed fraud upon him and had induced him to part with monies.

13.  Further the complainant states that to cover up on their fraud, the opposite party represented to him that they are willing to repay the entire amount received along with some consideration for surrendering the rights under the said agreement.  Thus in total, the opposite party had agreed to pay Rs.29,20,000/-. An  acknowledgment of the same has been made in the cancellation letter provided by the Opposite party, which has been  produced before this Commission vide Ex-C10.

14. That, in this regard, the opposite party had issued a cancellation letter dated 12.10.2016 and had handed over four Cheque to the complainant representation that the same would honored on its presentation and they are detailed as hereunder :-

15.  The complainant specifically alleges that on presentation of the said cheques, all came to be bounced. The acknowledgement sent by Kotak Mahindra Bank Ltd. Regarding the four cheques which has been dishonored with the information in the form of a memo, along with the cheques, have been produced before this commission vide Ex-C11 to Ex-C18.

16.       The complainant state that without no other go on 28.09.2018 a legal notice was issued , where in which the opposite party was called upon to refund the agreed amount of Rs.29,20,000/-. The notice so sent was avoided by the opposite party. The legal notice so sent have been produced before this Commission vide Ex-C19.

17.   The Complainant dream of owning a site in Bengaluru has been shattered because of the opposite party deficiency in service and unfair trade practices. The number of correspondences from the side of the Complainant has also caused a lot of physical and mental agony. Further complainants have suffered a loss of growth in his investments by way of time, even though the complainant had issued legal notice to the opposite party seeking to refund the agreed amount of Rs.29,20,000/-. The notice so sent was avoided by the opposite party and failed to refund a sum of Rs.29,20,000/-. Due to the negligence and willful deficiency of service on the part of the Opposite party, the Opposite Parties are liable to compensate the complainant for the same.

18.      As per the agreement, the opposite parties have to execute the sale deed. The opposite parties did not execute the sale deed as promised. Further, the complainants had issued legal notice calling upon the opposite parties to refund the agreed amount as per their own cancellation letter. In spite of receipt of notice, the opposite parties failed to refund the advance amount, complainant faced financial losses due to the delay and laches caused by the negligent, fraudulent actions of the opposite parties not only amounting to deficiency in service but also unfair trade practice. In such circumstances, the complainant has to be held entitled for refund of the amount paid by him and together is in requirement of full payment of the amount that the opposite party had agreed on paying for cancellation of the sale agreement and surrender of rights on property, and additional damages in the form of monetary compensation for deficiency in services. To evident the same the complainant have produced Ex-C10 cancellation letter in which the opposite parties have mentioned refunding the amount of Rs.29,20,000/- to the complainant. The opposite parties are legally liable to settle such an amount in favour of complainant.

19.  Thus considering these vital aspects of the agreement of sale coupled with other documents placed on record, since opposite parties failed to rebut contents of affidavit and documents submitted by complainant. The complainant has to be held proved the alleged deficiency of service on the part of opposite parties, since OPs proved to be failed to keep up their promises agreed under the sale agreement. Hence, we feel the complainant is entitled for refund of the above said amount of Rs.29,20,000/-. The complainants claimed interest at the rate of 18% p.a. we feel the said rate of interest is highly exorbitant one. Therefore, they are entitled for interest at the rate of 9% p.a. from the date of cancellation letter 12-10-2016 till realization. Further, it is just and proper to hold that complainant is also, entitled for some amount of compensation from the OPs for rendering deficiency in service. Complainants are entitled for a sum of Rs.1,00,000/- towards hardship and Rs.25,000/- towards litigation cost.

1. The complaint is allowed in part.
2. The opposite parties 1 to 3 are directed to pay a sum of Rs.29,20,000/- (Twenty Nine Lakhs Twenty Thousand Only)  to the complainant with interest at the rate of 9% p.a. from the date of cancellation letter 12-10-2016 till realization.
3. The opposite parties 1 to 3 are directed to pay sum of Rs.1,00,000/- (One Lakh Only)  as compensation  for inconvenience and mental agony caused  and do pay Rs.25,000/- (Twenty Five Thousand Only) as litigation cost. 
4. The opposite parties shall comply the order within 60 days from the date of the order. In case, the opposite parties fail to comply the order within the said period, the above said amount of Rs.1,00,000/- (One Lakh Only) carries interest at the rate of 9% p.a. from the date of order till realization.

5. Send a copy of this Order to parties to the complaint.

 Lady MemberJudicial MemberPresident