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

DATED 6^th DAY OF MAY 2022

ORDER

SRI.SHIVARAMA.K, PRESIDENT

1. The complainant has filed this complaint under Section 35 of C.P.Act, 2019 for a direction to the OP to execute registered sale deed and convey the title of the complaint schedule property in favour of the complainant and such other reliefs, as this Commission deems fit in the facts and circumstances of the case.

2. It is not in dispute that the OP is a registered firm under the Companies Act, 1956 and established for the purpose of developing lands for the formation of residential layout with the civic amenities and to allot the same to its members.  Further it is not in dispute that the complainant has become a member of OP and the OP had entered into an agreement of sale dated 17.06.1995 with the OP agreeing to sell the valid site No.11 measuring 40 x 60 ft. for a consideration of Rs.96,000/- situated at Vajragiri Township in the limits of Sheshagirihalli, Krishnarajapura and Ampapura Villages on Bengaluru-Mysuru Road.  It is also not in dispute that the complainant had paid the last installment in the year 1998.

3. It is the further case of the complainant that as per the terms and conditions of the agreement, the complainant had paid a sum of Rs.96,000/- in 60 equal installments from 17.06.1995 to 15.08.1998.  Further, after payment of the entire sale consideration, the OP has issued possession certificate dated 15.08.1998 and handed over the vacant possession of the complaint schedule property to the complainant.  Ever since, the complainant has been in full enjoyment of the complaint schedule property and the possession certificate dated 15.08.1998 has been handed over to the complainant.  Further, through letter dated 04.11.1999, the OP had intimated the complainant stating that it has obtained necessary approval from the concerned authorities and the complaint schedule property was ready for registration and the OP would intimate the date of registration.  But, the OP did not intimate the date of registration.  Subsequently, the complainant had approached the OP several times and requested to execute the sale deed.  But, the OP had postponed the same for one or the other reasons. 

4. It is further contended that since the OP did not come forward to execute the sale deed, the complainant got issued legal notice dated 12.04.2021 calling upon the OP to execute the registered sale deed and the notice was returned unserved.  Hence, this complainant found that the OP would not execute the sale deed, thereby, the present complaint came to be filed.

5. Other than the admission made by the OP stated above, it is the contention of the OP that the OP company had applied for conversion of agricultural land into non-agricultural land for the purpose of forming layout and since the layout comes within the purview of Bangalore-Mysore Infrastructure Corridor Area Planning Authority (BMICAPA), the Revenue Department sought clarification and issued a letter stating that the land in question cannot be converted for non-agricultural purposes.  Hence, the OP is not in a position to form the residential layout as proposed to earlier.  Hence, due to change in the circumstances, the OP has not in a position to complete the project as proposed.  Further, the OP company invested the amount received from the complainant towards the land and huge investment of the OP is held up in civil litigations and acquisition proceedings.  Therefore, the OP company is not liable to pay interest/damages as claimed by the complainant.  Hence, non-registration of the allotted site is not an intentional one, but for the reasons beyond the control of the OP.

6. It is further contended that the complainant had paid the last installment in the year 1998 and the OP company issued a letter to the complainant on 04.11.1999, but the complainant has not taken any steps for registration of the site and the present complaint came to be filed after lapse of 21 years, thereby, the present complaint is not maintainable on account of limitation and sought to dismiss the complaint.  

7. To prove the case of the complainant, he has filed affidavit in the form of his evidence in chief and got marked Ex.P.1 to Ex.P.9 documents and the representative of OP had filed affidavit in the form of his evidence in chief and got marked Ex.R.1 to Ex.R.14 documents. 

8. Both parties have filed their respective written arguments.  Heard the arguments of the learned counsel for the OP only.

9. On the basis of the pleading of the parties and the reliefs sought, the point that would arise for our consideration are as under:-

1. Whether there is deficiency in service on the part of the OP?
2. Whether the complainant is entitled for the reliefs as sought for?
3. What order?

10. Our answer to the above points are as under:

       Point No.1:-  In the affirmative.

      Point No.2:- Partly in the affirmative.   

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

REASONS

11. Point Nos.1 and 2: In order to avoid the repetition of facts and both the points are interlinked, both the points are taken together for discussion.  Complainant (P.W.1) and the representative of OP (R.W.1) have filed their respective affidavits in the form of their evidence in chief.  P.W.1 got marked Ex.P.1 to Ex.P.9 and R.W.1 got marked Ex.R.1 to Ex.R.14 documents.  P.W.1 and R.W.1 have reiterated the facts stated in their respective pleadings in the affidavits filed in the form of their evidence in chief.  Parties are not in dispute that the complainant has become a member of OP company and OP had entered into an agreement to sale dated 17.06.1995 of vacant site bearing No.11 measuring 40 x 60 ft. for a sale consideration of Rs.96,000/-.  Further, the complainant had paid the said sum amount in 60 equal installments commencing from 17.06.1995 to 15.08.1998.  Further, it is not in dispute that the OP had issued a possession certificate dated 15.08.1998.  To substantiate that the complainant had become the member of OP, P.W.1 has produced Ex.P.1 copy of membership form and the OP for having entered into an agreement to sell, P.W.1 has produced Ex.P.2 copy of agreement to sale and has produced payment receipts for having the installments received by the OP vide Ex.P.3.  Ex.P.4 is the possession certificate.
12. It is the contention of the learned counsel for the OP as contended in the written arguments that the OP company applied for conversion of the agricultural land into non-agricultural land for the purpose of forming layout.  But, the said land comes within the purview of Bangalore-Mysore Infrastructure Corridor Area Planning Authority (BMICAPA).  The Revenue Department sought no objection from the said authority by its letter dated 18.07.2001.  However, the said authority had issued letter dated 13.08.2001 to the Revenue Department to the effect that the land in question cannot be converted for non-agricultural purpose.  Further, there is a civil litigation pending before the Civil Court in and around Bangalore and Ramanagara in connection with the land purchased by the OP for the purpose of forming layout.  Under the circumstances, the OP company cannot execute the registered sale deed in favour of the complainant and OP company ready and willing to refund the advance amount paid by the complainant.  To substantiate the steps taken by the OP to form the layout and the civil litigations pending in connection with the land purchased by the OP, R.W.1 has produced Ex.R.1 to Ex.R.14 documents.
13. It is the contention of learned counsel for the complainant as averred in the written arguments submitted that whenever, the complainant approached the OP, OP had agreed to execute the sale deed in favour of the complainant in respect of the complaint schedule property.  Further, for the first time in the version, the OP had took contention that it cannot execute registered sale deed.  Hence, the OP had committed deficiency in service in not executing the registered sale deed in favour of the complainant after receipt of the entire sale consideration in the year 1998 itself.
14. On perusal of the Ex.R.4, the letter issued by Bangalore-Mysore Infrastructure Corridor Area Planning Authority (BMICAPA) dated 17.02.2003 addressed to OP, it appears that the said authority had rejected the claim of the OP in seeking for permission for formation of layout.  Hence, there is a merit in the contention of OP that the concerned authority did not issue permission to the OP for formation of layout.  Further on perusal of Ex.R.7 copy of plaint in O.S.No.2100/2014, copy of plaint in O.S. No.1017/2015 vide Ex.R.9, copy of order sheet in O.S.1017/2015 vide Ex.R.10 and copy of the plaint in O.S.No.7216/2007 vide Ex.R.14, it appears that the OP herein also a party in the said suits and there is a civil litigation pertaining to the property in question.  Therefore, the OP had substantiated the plea taken in the version that there is civil litigation pending pertaining to the property in question and the OP is a party in the said suits. 
15. On perusal of the documents produced and averments made in the affidavits, it appears to us that the OP cannot execute the sale deed in favour of the complainant for the reasons stated above.
16. It is the further contention of the learned counsel for OP that the complainant cannot be a consumer.  In support of the contention taken by the learned counsel for OP, he relied the judgement reported in (2014) 14 Supreme Court Cases 773- Ganesshlal Vs. Shyam. In the said case, there was an agreement of sale in between the private parties and the question was sale of a plot of land simpliciter not involving a consumer transaction.  In the case on hand, the complainant has become a member of the OP housing society.  Hence, we feel that the complainant is a consumer within the meaning of Section 2(7) of C.P.Act, 2019, since there was deficiency of service from the OP in not providing the site in question.  Since the fact of the case on hand is different from the facts of the case of the judgement cited, the same is not applicable to the facts of the case on hand.
17. Further the learned counsel for OP has also relied the judgement reported in 2018(2) CPR (NC) 170- Rakesh Nag Vs. Kakali Manna and another. In the said judgement also, an agreement was entered into between the parties for sale of the flat.  The transaction was of a sale simpliciter and in between the private parties.  Hence, we feel that the facts of the said case is also different from the facts of the case on hand and the same is not applicable to the case on hand.
18. Further the learned counsel for OP has also relied the judgement rendered by National Consumer Disputes Redressal Commission, New Delhi in Consumer Case No.180/2020- Sunjny Ahuja Vs. Raheja Developers Ltd., In the said case, the complainant claims that there was deficiency of service due to delay in handing over the possession of the flat allotted and claiming refund of amount deposited with compensation.  The OP took several contentions in the said case.  In the circumstances, the Hon’ble Commission had directed the OP for refund the entire amount paid with interest at 9% p.a. along with litigation cost of Rs.50,000/-.
19. We have taken into consideration of the contention taken by both the counsels in the written arguments. We are of the opinion that the OP is not able to execute the registered sale deed and in the circumstances, we cannot direct the OP to execute the sale deed. 
20. The complainant prays for the relief of direction to the OP to execute the sale deed and to convey the title of the complaint schedule property in favour of the complainant and to grant such other reliefs as this Commission deems fit in the circumstances of the case.  For the reasons stated above, we cannot direct the OP to execute the registered sale deed.  Since the OP being the developer, after receiving the entire sale consideration, OP did not form the layout, the same amounts to deficiency in service on the part of OP within the meaning of Section 2(11) and 2(42) of  C.P.Act, 2019.  Section 38 of C.P.Act 2019 contemplates that procedure on admission of complaint.  Section 38(9) of C.P.Act, 2019 contemplates that the District Commission shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908. Hence, we feel since the complainant has sought to grant such other reliefs as this Commission deems fit, by moulding the reliefs, the complainant is entitled for refund of amount paid to the OP as consideration for the property.  Further in the similar circumstances of the case in CC No.711/2015 by order dated 13.04.2022, this Commission directed the OP to refund the amount paid with interest at 9% p.a. from the date of respective payment till realization and cost of litigation.  The facts of the said case and the facts of the case on hand are similar.  Hence, on that ground also, on the principle of equity, the complainant herein is entitled for the refund of amount paid.
21. Admittedly, the complainant has paid the amount of Rs.96,000/- in between in the year 1995 to 1998 and the OP had used the said money rightly or wrongly for his own purpose.  Therefore, we feel the complainant is entitled for the interest on the said amount at the rate of 9% p.a. from the date of payment made till realization.  Further, in the case stated above, this Commission awarded Rs.10,000/- towards cost of litigation.  Hence, in this case also, the complainant is entitled for the cost of litigation and mental agony sustained of Rs.10,000/-.  Accordingly, we answer the point No.1 in the affirmative and point No.2 partly in the affirmative.
22. Point No.3:- In view of the discussions made above, we proceed to pass the following 

O R D E R

1. The complaint is allowed in part.
2. The OP is directed to pay a sum of Rs.96,000/- to the complainant with interest at 9% p.a. from the date of amount paid by the complainant to the OP till realization. 
3. Further, the OP is directed to pay a sum of Rs.10,000/- to the complainant towards cost of litigation and mental agony sustained.
4. The OP shall comply the order within 30 days from the date of this order.
5. In the event of OP fails to pay the said amount of Rs.10,000/- within 30 days from date of order, the same shall carry interest at the rate of 9% p.a. from the date of order till realization.
6. Furnish the copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 6^th day of May, 2022)

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

Documents produced by the representative of opposite party – R.W.1 are as follows: