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

DATED 25^TH DAY OF JANUARY 2024

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. Direct the OP to come and execute the sale deed of the schedule flat being described herein below in favour of the complainant on in his absence to appoint the Court Commissioner to execute the sale deed of the schedule flat in favour of the complainant.
2. Direct the OP to get the Occupancy Certificate of the schedule flat.
3. Direct the OP to pay an amount of Rs.10,00,000/- as compensation towards the mental agony.
4. Direct the OP to pay cost of the litigation to meet the ends of justice.

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

The complainant impressed by the advertisements given by the OP agreed to purchase flat bearing No.F4 in D Block at I Floor, for a total consideration amount of Rs.32,00,000/- and booked the flat on 22.03.2014. Later the OP has got executed the sale deed in favour of the complainant on 17.10.2014.

3. The OP has proceeded to put up the construction as per the terms of the construction agreement and they have unnecessarily delayed the construction work and did not complete the work within the schedule time as agreed by them.
4. It is further case of the complainant that when he has gone to see the construction during the month of November 2016 and to his surprise it was found that the construction put up in the area as D block was under demolition and after verification the complainant came to know that the OPs have put up the construction on the land belonging to the government being mentioned as ‘A” Kharab and as such the government authorities have proceeded to demolish the entire structure which included the flat of the complainant. After verifying the documents in the BDA office the complainant was surprised to note that the OP has manipulated the original sanction plan and illegally shown the scheme of construction of the flat over the said land which originally was kharab land and thereby the OP has played fraud on the complainant in misrepresenting the land.
5. The purchasers who invested the money in purchasing the flat from OP after coming to know about the gross negligence attitude on the part of the OP have filed complaint before the MICO Layout police station on 05.08.2016 and the same was registered as FIR No.648/2016 and the same was forwarded to the Director General of Police.  After that the complainant and several other purchasers have formed an association by name Spring Field Apartment Buyers/Owners Association and they have jointly filed the complaints before the MICO layout police. More than 106 complaints were filed before the Hon’ble state Commission in respect of all these flats and the Hon’ble State Commission in its judgements was pleased to allow the complaints and directed the OPs to complete the project within six months and on its failure to do so a direction was issued to the association to collect the balance amount and to proceed with the construction and to complete the same and further it was also directed that the sale deed be executed on its appointment of the Court Commissioner and accordingly more than 90 sale deeds have been executed by virtue of the orders of the Hon’ble State Commission and they have occupied their respective flats and they are residing therein.
6. The complainant has also filed CC No.258/2017 before the Hon’ble State Commission seeking for refund of amount from the OPs as his entire flat went in demolition and he did not had any other agreement in getting the remaining flats.  The complaint filed by the complainants was also allowed by the Hon’ble State Commission vide order dated 28.01.2019 and OP was directed to refund the amount of Rs.25,00,000/- with interest @ 18% p.a., and to Rs.2,00,000/- compensation.  After that the OP came forward and expressed his intention to give the flat instead of refunding the amount as per the order passed by the Hon’ble state Commission.  The complainant has consented for the same and accordingly a registered sale agreement was executed on 05.02.2021 by the OP, wherein the OP had undertaken to bequeath the flat as it is well described in the schedule and got accepted the entire consideration amount which was paid by the complainant earlier under the Sale deed dated 17.10.2014 and construction agreement in the year 2014. 
7. It is further case of the complainant that the complainant with a fond hope of getting the flat processed the OP to come and execute the sale deed in his favour and also made certain modification in his flat being allotted to him under the sale agreement but the OP did not bother to come and to execute the sale deed despite several demands made by the complainant.  Hence the complainant has filed this complaint.
8. In response to the notice, OP has not appeared before this Commission. Hence OP placed exparte.
9. The complainant has filed his affidavit evidence and relies on 10 documents. 
10. Heard the arguments of advocate for the complainant.    Perused the documents filed by the complainant.

11. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

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

Point No.1:  Affirmative

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

13. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, affidavit evidence and documents filed by the complainant. Inspite of issue of notice through paper publication, the OP remained absent. Hence OP neither challenged the allegations made in the complaint and also documents and they remained unchallenged.
14. It is undisputed fact that the complainant has filed CC No.258/2017 before the Hon’ble State Commission against the OP in respect of this transaction and obtained an order with a direction to the OP for refund of the amount with compensation.
15. In the meantime, the OP came forward to and expressed his intention to give the flat instead of refunding the amount. Under these circumstances, the complainant again entered into sale agreement with the OP on 05.02.2021 as per Ex.P9 and it is a registered sale agreement.  As per the Ex.P9 the OP has agreed to deliver the flat and execute the registered sale deed in favour of the complainant in respect of B schedule property referred in Ex.P9 i.e., flat No.F-37 in I floor, having super built up area of 1018 sq.feet with an undivided 224 sq.feet of the share with 2 BHK flat with one car parking space in Prabhavathi Spring Field, but the OP did not bother to execute the registered sale deed despite several demands. 
16. In support of his contention the complainant has also relied on the brochure of the project Ex.P1, copy of the sale deed dated 17.10.2014 Ex.P2, bank statements as Ex.P3, Copies of order passed by the Hon’ble State Commission Ex.P4 to 6, Photographs of the project as Ex.P7 Copy of the order passed in the complaint No.258/2017 Ex.P8.  Original sale agreement Ex.P9.
17. The conduct of the OP clearly discloses that even after the OPs suffered an order from the Hon’ble State Commission to refund the amount to the complainant have impressed the complainant to settle the matter stating that they will deliver the flat instead of refunding the amount. The complainant believing the words of the OP had entered into another sale agreement as per Ex.P9 and again the OP has not come forward to execute the sale deed.
18. The OP has played fraud on the complainant in order to avoid from refunding the amount as per the order passed by the Hon’ble State Commission as Ex.P8. The OP cannot retain the amount without executing the registered sale deed and without deliver the schedule flat in favour of the complainant. When the OP have agreed to execute the registered sale deed in respect of the schedule No.F37 in their project it is the duty to come forward and execute the sale deed in favour of the complainant. Under these circumstances, the complainant is entitle for the relief claimed in the complaint.  The complainant has clearly established the deficiency of service, negligence, fraud and unfair trade practice on the part of the OP. Even though the OP has collected the amount from the complainant and others in the year 2014 have neither refund the amount nor delivered the flat and executed the registered sale deeds as per the agreements.  They have also played fraud on the complainant even after the order passed by the Hon’ble State Commission in CC No.258/2017. Instead of complying the orders of the Hon’ble State Commission they have entered into settlement with the complainant that they will hand over the schedule flat and execute the registered sale deed. The complainant has filed this complaint for the second time and it is a second round of litigation against the OP for taking possession of the flat and to get the registered sale deed.  Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.
19. Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OP is hereby directed to come and execute the sale deed of the schedule flat No.F37 at I Floor of the OP apartment Prabhavathi Springfield in favour of the complainant within three months from the date of this order failing which the complainant to get the sale deed executed through the Court Commissioner appointed by this commission.
3. OP is further directed to pay a compensation of Rs.5,00,000/- with litigation cost of Rs.10,000/- to the complainant
4. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 25^TH day of JANUARY 2024)

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

Documents produced by the representative of opposite party – R.W.1;

NIL