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

DATED 26^th DAY OF APRIL 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. This complaint has been filed under Section 35 of C.P.Act, 2019 (herein under referred as an Act) for the following reliefs against the OPs:-

(a) Direct the OPs to return the aforementioned amount of Rs.2,30,000/- along with interest at 24% p.a.

(b) Direct the OPs to pay interest on the consideration paid by the complainant at the then existing bank rate of interest plus additional 2% surcharge as per the clause 3 of the agreement.

(c) Direct the OPs to pay a sum of Rs.1,00,000/- as damages for mental agony, pain and sufferings.

(d) Award cost and litigation expenses.

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

The complainant having agreed to purchase the 0.5 acre of land inclusive of road for sale consideration of Rs.2,30,000/- from the OPs, paid Rs.50,000/- as advance under token receipt agreement dated 21.09.2011.  He also agreed to pay balance amount of Rs.1,80,000/- within 60 monthly installments commencing from August 2011 to July 2016 by debiting of 59 equal monthly installments of Rs.3,000/- by issuing ECS mandate from banker.

3. The complainant paid all the 60 installments.  Even though, OPs promised to execute the sale deed in respect of the flat within 60 months from the date of entered into agreement.  But, despite repeated requests, the OPs failed to execute the registered sale deed. In November 2020, the complainant met the OPs and requested either to allot site or to refund the money.  But, OPs promise to execute the registered sale deed by addressing letter.  But, OPs failed to comply the request of the complainant.  The OPs also failed to refund Rs.2,30,000/- which amounts to deficiency of service.  Hence, this complaint.

4. After receipt of notice, the OPs appear through their counsel and file version.  The complaint is not maintainable as complainant is not a consumer and there is no agreement to provide service.  The complaint is barred by limitation as complaint came to be filed after 2 years 10 months 21 days.  There is a delay of 1055 days for filing a complaint.

5. The OPs also contend that the complaint is not maintainable as it is pre-mature.  The complainant has not paid entire sale consideration as per the terms of token receipt agreement.  In case of requests for cancellation of agreement within 30 days, the OPs were liable to refund the amount received, if requests is made after 30 days, the OPs are entitled to deduct certain amounts and refund the balance after 90 days from the date of sale of plot. There is no deficiency of service on the part of OPs.

6. The OPs also contend that the token receipt agreement is unstamped and complaint based on unstamped receipt agreement is not maintainable.  There is no stipulation in the agreement about payment of interest at 24% p.a. in the event of cancellation.  The complainant is not entitled to interest at 24% p.a. and compensation of Rs.1,00,000/-.  The OPs request to dismiss the complaint.

7. The complainant filed his affidavit evidence and relies on six documents.  The affidavit evidence of authorized signatory of OPs has been filed and one document has been marked.  Heard the arguments of both sides.  We also perused the citations furnished by both the sides.

8. The following points arise for our consideration:-

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?

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

       Point No.1: Affirmative.

      Point No.2:- Partly in the affirmative.

      Point No.3: As per final orders

REASONS

10. Point Nos.1 and 2:  These two points do require the common course of discussion.  Therefore, these two points have been taken for common discussion to avoid repetition and over lapping of the reasons.
11. We would like to refer the admitted facts before trashing the controversy between the parties.  The complainant and OPs have entered into token receipt cum agreement dated 21.09.2011 in respect of plot No.438 measuring ½ acre for total consideration of Rs.2,30,000/-.  According to the complainant, he has paid advance sum of Rs.50,000/- and balance of Rs.1,80,000/- in 60 monthly installments by means of ECS facilities from August 2011 to July, 2016.
12. According to the OPs, the unstamped agreement dated 21.09.2011 is not admissible evidence.  But, OPs no where deny receipt of Rs.2,30,000/- from the complainant.  When the parties have admitting the terms of token receipt cum agreement, the complaint cannot be thrown out for non-writing of such agreement on the required stamp paper.  This agreement is written on 2 rupees stamp paper.  But, OPs have not placed any provision how much stamp duty was payable on this agreement.  Moreover, the OPs have not raised objection at the time of marking Ex.P.1 as evidence.  When the document is admitted as evidence, the OPs are not right in saying that the complaint based on deficit stamp paper agreement is not tenable.  Accordingly, the contention of the OPs about admission of agreement is rejected.
13. The OPs have raised the contention that the complaint is barred by limitation i.e. delay of 1084 days.  According to the OPs, the complainant was supposed to file the complaint on 21.09.2018.  In support of their argument, OPs place reliance on the decisions of the in Hon’ble National Commission in the matter between Sanjay Sing Vs. Baby Chandna and Ors Revision Petition No.2208-2209 of 2015 and another decision in Revision Petition No.4306 of 2012 – P.J.Joseph Vs. M/s Aratukulam and others.
14. According to the complainant, during November, 2020 he had approached the OPs who issued E-mail and OPs assured the complainant that the site will be allotted in couple of months.  It is settled preposition of law that agreement is in respect of immovable property, time is not the essence of the contract.  This contention of the complainant has not been specifically denied by the OPs.  It is not the case of the complainant that immediately after July 2016, the OPs called upon the complainant to come and obtain registered sale deed.  The OPs have not produced any evidence to show that the plot No.441 has been in their name.  Under such circumstances, there is no delay in filing the complaint.  The complaint came to be filed within two years from November, 2020.  Therefore, above decision is not applicable to the present case on hand.
15. The complainant seeks refund of Rs.2,30,000/- with interest at 24% p.a., compensation of Rs.1,00,000/- and litigation costs.
16. The advocate for the complainant placing reliance on the following two decisions of the Hon’ble National Commission and Hon’ble Supreme Court of India seeks to award interest:-

1. Mehnga Singh Khera and another Vs. M/s Unitech Ltd., dated 18.12.2019 in case No.1395/2017 in Hon’ble National Commission.

2. Ireo Grace Realtech Pvt. Ltd., Vs. Abhishek Khanna and others in Civil Appeal No.5785/2019 in Hon’ble Supreme Court of India.

17. In view of the latest decision, i.e. 2^nd decision of Hon’ble Supreme Court of India, there is no relevance to refer the first decision.  In view of this decision, also the complainant is entitled only interest at 9% p.a. on the paid amount.
18. In support of the arguments, the OPs place reliance on following decisions:-

1. Ganeshlal Vs. Shyam (2014 (I) CP 529.
2. S.G.Shankar Vs. U.Venkata Raja Reddy, Revision Petition No.3421/2017.
3. Davinder Sing Grewal and others Vs. R.S.Real Estate and others 2017 (2) CPR 477
4. Kandimala Raghavaiah and Co. Vs. National Insurance Co. and another 2009 (80) AIC 91.

19. We carefully perused the facts and ratio involved in the above decision.  In the first decision, the complaint was filed for delivery of possession of concerned plot of the land. After order of the Hon’ble State Commission, the appellant had executed the sale deed in favour of the complainant by handing over the possession.  But, in this case, the complainant neither seeks a direction to the OPs either to execute registered sale deed or to deliver the possession of plot.  Therefore, this decision is not applicable to the present case on hand.
20. In the 2^nd decision, the possession of the property was delivered at belated stage and sale deed was not executed.  Under such circumstances, it was held that the complainant seeks direction against OPs to execute registered sale deed in respect of the plot of land was not maintainable.  For the reasons stated above, the present complaint is not for execution of registered sale deed.  Therefore, 2^nd decision also not applicable.
21. Similarly, other two decisions are also not applicable to the present case on hand as the complainant never seeks either execution of sale deed in respect of the plot or delivery of the possession of the plot.  The case is only in respect of refund of amount with interest.
22. It is one of the contention of the OPs that the OPs never agreed to provide any service under the agreement and therefore, the complainant is not the consumer.  Accordingly, the OPs request to dismiss the complaint.  It is relevant to note that the complainant agreed to purchase flat bearing No.438 measuring ½ acre through developer from the vendors.  The complainant seeks refund of paid amount and not for execution of sale deed.  It is relevant to note that the plot bearing No.438 agreed to be sold to the complainant inclusive road and fully developed.  Under such circumstances, the plot No.438 requires to be developed with approachable road.  Unless, the plot is developed with inclusive of road, the prospective purchaser like complainant will not be in a position to enjoy the plot.  Moreover, the complainant does not seeks registration of sale deed.  Therefore, this contention of the OPs also rejected.
23. It has been proved that the OPs have received in all Rs.2,30,000/- from the complainant latest by July 2020, but there is no agreement between the parties with regard to payment of interest more particularly 24% p.a. Therefore, complainant is not entitled to interest at 24% p.a. Rs.2,30,000/- is lying with OP since July 2016. In view of recent judgement of Hon’ble Supreme Court of India, it is proper to award interest at 9% p.a. from the date of payment till realization.
24. The complainant claims Rs.1,00,000/- as compensation.  But, complainant is not entitled to compensation at any rate in addition to the interest.  Therefore, request of the complainant to award compensation requires to be rejected.
25. Point No.3:- Having regard to the discussion referred above, the complaint requires to be allowed in part.  The complainant has availed service of advocate.  Therefore, cost of litigation is quantified at Rs.5,000/-.  The OPs are liable to refund Rs.2,30,000/- with interest at 9% p.a. from August 2016 till realization. We proceed to pass the following 

  O R D E R

1. The complaint is allowed in part.
2. The OPs shall refund Rs.2,30,000/- with interest at 9% p.a. from August 2016 with cost of litigation Rs.5,000/- to the complainant. 
3. The OPs shall comply this order within 60 days from this date, failing which, the OPs shall pay interest at 12% p.a. on Rs.2,30,000/- after expiry of 60 days till realization.
4. 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 26^th April, 2022)

Documents produced by the Complainant which are as follows:-

Documents produced by the OPs which are as follows:-