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

DATED 09^TH DAY OF JUNE 2023

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 execute the registered sale deed of the schedule property in favour of both the complainants by receiving balance sale consideration amount of Rs.5,00,000/-
2. Direct the OP to pay compensation of Rs.25,00,000/- for the deficiency and unfair trade practice caused at the instance of the OP to the complainants.
3. Direct the OP to pay the cost of the present litigation cost.
4. Pass such other direction that this Hon’ble Commission deems fit to grant in the interest of justice and equity.

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

The complainant after verifying the advertisement given by the OP has made up his mind to invest in the forthcoming project Akshaya Regaliea apartment in the year 2015.  The OP have agreed to sell the flat measuring an extent of 1080 sq. feet and 145 sq. feet garden area at ground floor bearing flat No.35 C Block with an undivided share of 402 sq. feet, referred in the schedule property for a sum of Rs.47,50,000/-.  

3. The complainant has paid Rs.1,00,000/- by way of cheque for beginning of the projects earth works. He has entered into construction agreement in the month of September 2015 and sale agreement on 01.09.2015. after that the complainant approached the financial institution for financing the aforesaid project for buying the schedule property obtained housing loan on market floating rate of interest 9.75% from Panjab National Bank Housing Finance Limited, BTM layout, Bangalore. As per the said agreements the project is bound to complete within the year 2017. As per the standard practice adopted by the financial institution of the complainant, the institution released the loan amount directly to the account number given by the project in two intervals looking into the progress of the project.  Even though the OP have to complete the project within the year 2017 but for the best reasons known to the OP the completion of the said project is prolong and thereby the OP has violated the terms of the agreement. They have requested the complainant that due to some practical difficulties the project could not be completed on time and extended the time as per the Ops requirements.  The complainant being an individual having dream of owning a flat was forced to agree for OP requirements every time till 2017.
4. It is further case of the complainant that at last the OP has completed the project only in the mid of the year 2018 but due to typographical error instead of 2018 the same was mentioned as 2019 in the legal notice issued.  During that point of time also the complainant and OP witnessed the schedule property. There were lot of civil minor works yet to be completed. Wherein the OP used to promise the complainant at that time along with rest other flats. The same will be completed and the possession will be delivered upon execution of the sale deed.  Thereafter the OP has protracted in completing his obligation for some time in the beginning and later taking advantage of pandemic covid 19 break down announced by the government in the month of March 2020 as a matter of right and also a boon to Ops tortoise speed in completing the said project.  The OP has prolonged his part of contractual obligations.
5. It is further case of the complainant after withdrawing of pandemic covid 19 restrictions imposed by the government i.e., from November 2021 every now and then the complainant kept on insisting the OP to come and execute the sale deed of the suit property wherein out of the consideration amount of Rs.47,50,000/- the complainant’s have paid the lion share through PNB HFL a sum of Rs.35,37,000/- and he has totally paid by issuing individual cheque an amount of Rs.36,37,000/-.
6. It is further case of the complainant that the complainant without enjoying of owning their dream house even to this day is paying interest including monthly installment to the financial institution in huge margin to the tune of Rs.34,388/- p.m. as EMI and the financial institution is forcing the complainant to get the deal completed from the OP and to hand over the original title deeds of the schedule property as per their terms and conditions if not the financial institution many a times warned the complainants that an appropriate legal action will be taken against them. Even though the complainants are always ready and willing to fulfill their part of obligation and even though they have agreed to pay an amount of Rs.5,00,000/- demanded by the OP out of the balance sale consideration amount of Rs.11,50,000/- the OP has not come forward to execute the sale deed and they are avoiding the complainant to fulfill their part of obligation ad made the complainants to run from pillar to post. At last the complainant’s have also issued a legal notice through their counsel on 28.06.2022 and the same was received by the OP but they have neither complied the demand nor cared for the notice.  Hence the complainant has filed this complaint.
7. Though notice was served to the Ops through RPAD, they have not appeared before this Commission and not contested the matter.
8. The complainant has filed his affidavit evidence and relies on 10 documents. 
9. Heard the arguments of advocate for the complainant.   Perused the documents.

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

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

11. 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

12. 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 and documents 1 to 10. Inspite of issue of notice the OPs remained absent. Hence OPs neither challenged the allegations made in the complaint and also documents and they remained unchallenged.
13. The complainant has agreed to purchase the schedule property has entered into sale agreement and construction agreement with the OP as document No.1 and 2 on 01.09.2015.  The complainant has agreed to purchase the schedule property for a total consideration amount of Rs.47,50,000/- as per the cost breakup document produced by the complainant.  The complainant has also raised housing loan from PNB bank in order to pay sale consideration amount to the OP.  the complainant has totally paid an amount of Rs.35,37,000/- a lion share through PNB HFL and he has also paid Rs.1,00,000/- by issuing individual cheque in favour of the OP.  Even though the complainant has paid substantial amount towards sale consideration amount as per the demand made by the OP he has also paid Rs.5,00,000/- when the OP has agreed to execute the registered sale deed in their favour.  Inspite of receiving the substantial amount of sale consideration the OP has not come forward to execute conveyance deed and he simply dragged the matter. At last he has got issued legal notice as document No.4 and it was served on the OP. Inspite of service of notice, the OP have neither complied not issued any reply notice.
14. Inspite of service of the notice the OP remained absent. They have not at all challenged the allegations made in the complaint and the documents produced by the complainant and they remained unchallenged. There is no reason to disbelieve the evidence and documents produced by the complainant.
15. As per the sale agreement and construction agreement entered between the complainant and OP dated 01.09.2015 the OP is bound to complete the project within the year 2017.  Even though OP has received Rs.36,37,000/- a lion share of sale consideration amount has neither come forward to execute the registered the sale deed in respect of the schedule property even in the year 2022. The complainants have waited for more than five years and after that they have filed this complaint, when the OP have failed to execute the registered sale deed in their favour by delivering the possession of the schedule property.  The complainant has also produced photographs to show that the project is completed and some of the owners have occupied the flats and they are using the flats.
16. When the complainant has made substantial amount towards sale consideration in the year 2015 itself it is the duty of the OP to execute the registered sale deed in favour of the complainant or otherwise he has to refund the amount.  The OP cannot avoid the complainants by keeping the substantial sale consideration amount paid by them without executing the registered sale deed.
17. The OP has committed deficiency of service in not fulfilling the obligations under the sale and construction agreement. Under these circumstances the complainant has clearly established the deficiency of service and unfair trade practice on the part of the OP. therefore the complainant is entitled for the relief. Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.
18. Point No.3:- In view the discussion referred above the complaint is liable to be allowed in part. OP is liable to execute the registered sale deed in favour of both the complainants by receiving the balance sale consideration amount of Rs.5,00,000/- and further OP is directed to pay compensation of Rs.2,00,000/- with litigation expenses of Rs.20,000/- to the complainant and hence we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OP is directed to execute the registered sale deed in favour of both the complainants by receiving the balance sale consideration amount of Rs.5,00,000/-
3. Further OP is directed to pay compensation of Rs.2,00,000/- with litigation expenses of Rs.20,000/- to the complainant.
4. The OP shall comply this order within 60 days from this date, failing which the complainant can get the sale deed by executing this order by filing execution petition.
5. 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 09^th day of JUNE, 2023)

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

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

NIL