BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, MYSORE-570023

CONSUMER COMPLAINT NO.268/2021

DATED ON THIS THE 20^th October 2022

      Present:   1) Sri. B.Narayanappa

M.A., LL.B., - PRESIDENT   

                     2) Sri Maruthi Vaddar,

                                                B.A., LLB (Special)  - MEMBER

Sri B.NARAYANAPPA,

PRESIDENT

1.       The complainant Mrs.Nita S.Mathew resident of Mysuru represented by her GPA holder Shaji Mathew has filed  this complaint against the OP No.1- M/s Premier Properties, Mysuru and OP No.2- S.Shailendra Babu, Bengaluru directing the OP No.1 to complete the agreed work immediately and hand over the possession of ‘B’ Schedule property by obtaining occupancy certificate and execute registered sale deed in favour of the complainant by collecting the balance amount and to pay Rs.33,63,996/- towards delay charges and compensation of Rs.25,00,000/- for having practiced deficiency in service and unfair trade practice and such other reliefs as this Commission deems to grant.
2.       The brief facts are that:-

The complainant was in look out to have an apartment of her own in the city of Mysuru with all amenities.The OP No.1 being proprietor of partnership firm namely Premier Metropolis of A schedule property made lucrative representations to the complainant, hence, the complainant decided to purchase one flat in the project namely Premier Metropolis developed by OP No.1.After negotiations, the complainant decided to purchase one flat bearing No.710 situated in A schedule property measuring 1551.70 sq.ft. with un divided interest of 715.54 sq.ft. with one top covered car parking in the basement of the said building which is referred in schedule B property and the complainant and OP No.1 entered into an agreement of sale dated 13.12.2010 and total sale consideration for the schedule B property was fixed at Rs.37,30,000/- and the OP No.1 offered a discount of 85% of the total sale consideration and therefore the total sale consideration was fixed at Rs.35,71,475/-.The complainant has paid total sale consideration of Rs.32,31,475/- as per the agreement for sale, the OP No.1 was under the obligation to complete the construction and to execute sale deed in favour of the complainant in respect of flat and hand over the vacant possession of the same tentatively by 30.06.2011 and the OP No.1 also agreed to pay Rs.27,120/- per month from 01.07.20211 till the date of handing over vacant possession of the schedule B property along with all amenities and statutory approvals.But, OP No.1 started to delay construction and for sometimes stalled the whole project and even till today several works are pending like the flat does not have occupancy certificate and no approvals have been taken from Chief Inspector of Lifts and no permanent power was taken.Whenever the complainant approached OP No.1 and asked to complete the pending work, the OP No.1 kept on dodging the matter. After lapse of some time, the complainant noticed that the several persons were occupying their respective flats and this made the complainant to grow suspicious about the OP No.1 and learnt that OP No.1 played fraud on several persons by selling one flat to two different persons and cases were pending before the Courts.In spite of addressing several E-mails to OP No.1, he never come forward to complete the pending work and to execute sale deed in favour of the complainant in respect of schedule B property.The complainant approached jurisdictional Sub-Registrar and checked the encumbrance of schedule B property and shocked to see that OP No.1 had entered into agreement of sale on 06.11.2015 agreeing to sell schedule B property in favour of OP No.2 by suppressing the existence of earlier agreement of sale executed in the name of the complainant and the OP No.1 never terminated agreement of sale executed in favour of the complainant.Therefore, the complainant left with no option has filed present complaint alleging deficiency in service and also unfair trade practice on the part of OPs.The complainant is ready and willing to pay the balance amount in respect of schedule B property.Hence, this complaint.

3.       After registration of this complaint, notices were ordered to be issued to OPs.  In spite of service of notice upon OP No.2 he does not turned up, hence, OP No.2 2 was placed exparte and in response to notice, OP No.1 appeared before this Commission through its counsel, but not filed version.                 
4.        The GPA holder of the complainant has filed his affidavit by way of examination in chief and the same was taken as P.W.1 and got marked the documents as Ex.P.1 to Ex.P.4.    
5.     We have heard the arguments of counsel for complainant.  The OP No.1 and counsel for OP No.1 were not present and not addressed the arguments.    
6.        The points that would arise for our consideration are as under

1. Whether the complainant proves that the alleged deficiency in service on the part of the opposite parties and also unfair trade practice and thereby she is entitled to the reliefs as sought for?
2.  What order?

7.       Our findings on the aforesaid points are as follows:

      Point No.1 :- Partly in the affirmative.

      Point No.2 :- As per final order for the following

:: R E A S O N S ::

8.          Point No.1:- It is the specific contention of the complainant that she was in look out to purchase one flat within the limit of Mysuru city and came to know that the OP No.1 being the proprietor of partnership firm namely M/s Premier Properties and is carrying on the business of developing multi-storeyed residential flat and one of his project is named as Premier Metropolis in schedule A property as such complainant decided to purchase schedule B property in the apartment of Premier Metropolis developed by OP No.1 and entered into agreement for sale with OP No.1 on 13.12.2010 and the total sale consideration was fixed at Rs.37,30,000/-.  After discount given by OP No.1, the sale price was fixed at Rs.35,71,475/.  The complainant had paid a sum of Rs.32,31,475/-.  The complainant produced agreement for sale dated 13.12.2010 executed by OP No.1 in favour of the complainant which clearly reflects that the OP No.1 agreed to sell schedule B property in favour of the complainant for Rs.37,30,000/- and received Rs. 1,67,500/- and agreed to receive the balance amount at the time of execution of sale deed, so from the agreement dated 13.12.2010 it is crystal clear that the OP No.1 by receiving advance amount of Rs.1,67,500/- from the complainant executed agreement for sale in favour of the complainant agreeing to sell schedule C property as per the agreement for sale which is described as schedule B property in the complaint.  According to the complainant, she had paid total sum of Rs.32,31,475/- out of total sale consideration amount of Rs.35,71,475/- and she was ready to pay the balance amount to get the sale deed registered in her name from OP No.1 in respect of schedule B property.  But, the OP No.1 did not come forward to execute sale deed in favour of the complainant in respect of schedule B property by receiving balance sale consideration and dodged the matter for one or other reasons, by the act of the OP No.1, the complainant suspects about OP No.1 thinking that OP No.1 may play fraud and the complainant learnt through reliable sources that OP No.1 played fraud on several persons by selling one flat to 2 persons.  Therefore, with this suspicious attitude on OP No.1, the complainant approached jurisdictional Sub-Registrar and checked encumbrance in respect of schedule B schedule and shocked to see that the OP No.1 entered into agreement for sale dated 06.11.2015 in respect of schedule B property in favour of the OP No.2.  Even though, the agreement of sale executed in favour of the complainant dated 13.12.2010 was in force and without cancelling the agreement for sale executed in favour of the complainant dated 13.12.2010. The complainant produced encumbrance which clearly reflects that the OP No.1 executed registered agreement for sale dated 06.11.2015 in respect of schedule B property in favour of OP No.2 and also produced copy of agreement executed by OP No.1 in favour of the OP No.2 dated 06.11.2015 in respect of schedule B property.  So from the encumbrance and copy of agreement for sale dated 06.11.2015, it is crystal clear that the OP No.1 executed registered agreement for sale in favour of OP No.2 in respect of schedule B property, even though the first agreement executed by OP No.1 in favour of the complainant dated 13.12.2010 was in force which clearly establishes that the OP Nos.1 and 2 not only committed deficiency in service and also unfair trade practice with an intention to defraud the complainant and it is further clear contention of the complainant that OP No.1 has agreed in terms of agreement dated 13.12.2010 to complete the pending works and to execute sale deed in favour of the complainant in respect of schedule B property and hand over the vacant possession of the same tentatively by 30.06.2011.  But, the OP No.1 did not do so and he has not obtained occupancy certificate in respect of schedule B property from concerned authority and also not obtained permission to erect lift and did not complete the pending works.  The act of the OP No.1 in execution of agreement for sale dated 06.11.2015 in favour of OP No.2 agreeing to sell schedule B property in favour of OP No.2 by suppressing existence of earlier agreement for sale executed in favour of complainant dated 13.12.2010 is not only deficiency in service but, also the OP Nos.1 and 2 have committed unfair trade practice with malafide intention to cheat the complainant.  When the first agreement executed in favour of the complainant by OP No.1 dated 13.12.2010 is in existence and without cancelling the agreement for sale dated 13.12.2010, the execution of subsequent agreement dated 06.11.2015 by OP No.1 in favour of OP No.2 in respect of schedule B property is the sham document and the agreement dated 06.11.2015 has no evident value in the eye of law when the first agreement dated 13.12.2010 is in subsistence. Therefore we are of the view that the OP No.1 bound to execute sale deed in favour of complainant in respect of schedule B property by receiving balance sale consideration. Therefore, we are of the considered view that the complainant has proved the deficiency in service and also unfair trade practice on the part of Ops.    Hence, we answer point No.1 partly in the affirmative.
9.       Point No.2:- For the aforesaid reasons, we proceed to pass the following

:: ORDER ::

1. The complaint of the complainant is hereby allowed in part.
2. The opposite party No.1 is hereby directed to complete the pending works in respect of schedule B property and to execute the sale deed in favour of complainant in respect of schedule B property by receiving balance sale consideration within two months from the date of this order. Failing which the OP No.1 shall pay penalty of Rs.100/- per day till execution of registered sale deed in favour of complainant in respect of Schedule B property.      
3. Further, opposite party is hereby directed to pay compensation of Rs.2,00,000/- which includes delay charges agreed at Clause No.5 of the sale agreement dated 13.12.2010 and further the OP No.1 shall pay Rs.5,000/- towards cost of the litigation within 2 months from the date of this order, failing which compensation of Rs.2,00,000/- + cost of litigation of Rs.5,000/- = 2,05,000/- shall carry interest at 10% p.a till payment.
4. Complaint against OP No.2 is dismissed since no claim is made against him.
5. The complainant is at liberty to take action against the opposite party under Section 72 of the C.P.Act, 2019 for non-compliance of this order.
6. Furnish the copy of order to both parties at free of cost.

(Dictated to the Stenographer transcribed, typed by her, corrected by us and then pronounced in open Commission on this the 20^th  October, 2022)