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

DATED 13^TH DAY OF JULY 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 Ops 1 to 3 to refund the advance amount of Rs.38,60,748/- with interest at 24% p.a., from the date of receipt of the same until the date of its realization.
2. Direct the Ops1 to 3 to pay compensation of Rs.5,00,000/- for harassment and mental agony suffered.
3. Direct the Ops 1 to 3 to pay a sum of Rs.1,00,000/- towards cost of litigation.
4. In case of nonpayment of all the amount as would be ordered by this forum to the complainant to create first charge on the schedule mentioned properties belonging to the Ops 1 to 3 and then permit the complainant to recover the same from the schedule property.
5. 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 was impressed by the advertisement of the OP has agreed to purchase the schedule property i.e., apartment unit No.E705, measuring a super built up area of 1225 sq. feet.  He has approached the OP in the year 2018 for purchase of the property and paid an advance of Rs.1,00,000/- and the OP has provided him the booking form.  Subsequently the OP entered into construction agreement on 04.09.2018 followed by an agreement of sale dated 06.09.2018 thereby agreeing to sell the schedule property to the complainant and for no one else.

3. It is further case of the complainant that in order to facilitate her to purchase the schedule property the Ops have proposed her to borrow loan from schedule commercial bank. The Ops have entered into a Tripartite agreement on 20.09.2018 and subsequently housing loan to an extent of Rs.47,12,000/- was granted in favour of the complainant. As per the schedule the OP had been issuing demand letters directly to M/s SBI limited, thereby seeking release of installments from the sanctioned loan amount. The complainant till date has paid an amount of Rs.38,60,768/-. Out of the agreed sale consideration of Rs.52,59,125/-.
4. The complainant came to know after discovery that the OP quite unjustly colluding himself with other land owners has entered into another agreement of sale with one Smt.T.Rajakumari in which the schedule property in respect of which already a vested interest is created in favour of the complainant and also has been included.  The OP has got the said agreement registered on 27.02.2019. the complainant came to know about the said fraudulent transaction on 19.06.2020 and she immediately approached the OP, whereas OP quite audaciously replied to the complainant by sending her a draft copy of MOU asking her to sign and dance to the tunes of the OP. however the complainant being an educated person and also understanding her rights did not sign the MOU and she got issued legal notice through her counsel on 09.07.2020.

5. It is further case of the complainant that she has also approached the jurisdictional police complaining of the fraud committed by OP. whereas the OP who is quite influential person managed to see that not even a FIR would be registered against him.  The OP knowingly had committed fraud on the complainant by registering property already agreed to be sold to the complainant in favour of a third party to unjustly enrich himself at the cost of the complainant.  The OP by committee such act of fraud had not only cheated the complainant but also the scheduled commercial bank i.e., State Bank of India, which is a custodian for public money.  Hence the complainant has filed this complaint.

6. In response to the notice, OP1 to 3 appeared before this Commission and OP1 and 3 filed their version. OP2 has not filed the version. OP4 to 17 remained absent and placed exparte.

7. It is the case of the OP1 and 3 that they are reputed builders and developers in the name and style of M/s Hi Life Ventures Pvt. Ltd. The complainant is well aware that after entered into agreement by the complainant, the Ops intimated to the complainant regarding negotiation with Smt.T.Rajakumari for obtaining project loan.  After the complainant gave consent and also the other prospective purchasers then only this Ops have obtained loan of Rs.8,10,00,000/- by securing the flats constructed on the aforesaid properties. The said agreement was only for the purpose obtaining the project loan only.  These Ops have informed the prospective purchasers including complainant also each and everything and they have discussed with the complainant and other prospective purchasers regarding obtaining the project loan. After obtaining consent from the complainant and other prospective purchasers they have failed to pay the agreed sale consideration to this Ops. Therefore due to financial problem caused to the Ops for completion of construction of the building

8. It is also the case of the OP1 and 3 that the complainant and other prospective purchasers intentionally with malafide intention have made unlawful demand with the Ops. The complainant has demanded the Ops to pay off Rs.25,000/- pm., as damages till the completion of the project.  When these Ops have not agreed and accepted their unlawful demand the complainant with ulterior motive have filed this frivolous complaint before this commission.

9. It is further case of the OP 1 and 3 that, they have intimated the complainant that when she paid the entire sale consideration in respect of flat No.E705 of Hi Life greens, these Ops are ready to execute the sale deed in her favour.  The complainant is well aware of all these things and Smt.T.Rajakumari also given her consent to the sale deed of the complainant in respect of the flat.  The complainant has not paid entire consideration amount till today and she did not fulfill her obligation as agreed by her as per the terms of the agreement of sale and construction agreement. Hence the question of fraud or cheating does not arise.  These Ops shall abide to keep the good relationship with prospective purchasers and they are always ready and willing to perform their part of the contract and ready to execute the sale deed if the complainant paid remaining balance sale consideration.

10. It is further case of the OP that this court has no jurisdiction to entertain this complaint. If any party commit any breach of contract obligation cast upon him the aggrieved party shall file a specific performance suit. The complainant has right to initiate the proceedings for specific performance for execution of the sale deed for justification and between the complainant and the Ops only contractual relationship or buying the flat only, not for providing any service or consumer relationship between them.  Hence the complaint is not maintainable and liable to be dismissed for want of jurisdiction. Hence Ops prayed for dismissal of the complaint with exemplary cost.
11. The complainant has filed his affidavit evidence and relies on 09 documents.  Affidavit evidence of OP1 and 3 has been filed but no documents marked.

12. Heard the arguments of both the parties. Perused the documents.

13. 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?

14. 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

15. 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, version of OP1 and 3, affidavit evidence and documents produced by both the parties.  Even though the OP2 appeared before this Commission through their counsel has not filed the version.

16. It is undisputed fact that the complainant has contacted the OP1 for purchase of schedule apartment in the year 2018 and paid an advance amount of Rs.1,00,000/-.  The OP has issued the Ex.P1 the booking form for having received the advance amount.  After that the complainant entered into construction agreement on 04.09.2018 and agreement of sale dated 06.09.2018 as per document No.P2 and P3.  The complainant has borrowed loan from schedule commercial bank and entered into tripartite agreement on 24.08.2018 and subsequently she borrowed housing loan to an extent of Rs.47,12,000/-.  The complainant has paid an amount of Rs.38,60,768/- till date out of the total agreed sale consideration of Rs.52,59,125/-.  The complainant was regular in payment of EMI and she never defaulted in paying the amount.

17. It is the specific grievance of the complainant that the OP unjustly colluding himself with other land owners has entered into another agreement of sale with one Smt.T.Rajakumari in respect of the schedule property in which already a vested interest is created in favour of the complainant.  The OP has got the said agreement registered before the Sub-Registrar on 27.02.2019 as per Ex.P8.

18. It is further grievance of the complainant that after coming to know about the said transaction on 19.06.2020 she approached the OP and the OP was quite audaciously replied by sending a draft copy of MOU and asked her to sign the document.  When the complainant has refused to sign the document and she also got issued legal notice through her counsel as document No.14.  After that she has approached the jurisdictional police and also filed a complaint against the OP and the same was managed by the OP with the police as he is a influential person and they have not registered the complaint. After that the complainant has approached the Ops for refund of the amount as she lost interest in getting the schedule property registered in her name, since the schedule property was allotted in favour of one Smt.T.Rajakumari as per document No.Ex.P8 after executing registered sale agreement with her. 
19. On the other hand, the contention taken by the OP1 and 3 is that they have clearly admitted about the agreement entered into between the complainant and themselves. It is the specific contention taken by the Ops that the complainant is well aware about the sale agreement entered into between these Ops and Smt.T.Rajakumari.  The said transaction taken place for obtaining project loan.  Ops have entered into sale agreement with Smt.T.Rajakumari after obtaining consent by the complainant and other prospective purchasers and then only these Ops have obtained the loan of Rs.8,10,00,000/- by securing the flat constructed. The said agreement is only for the purpose of obtaining project loan.  

20. Even though the complainant and other prospective purchasers are well aware of all these transactions intentionally with malafide intention have made unlawful demand with this OP to pay Rs.25,000/- pm as damages till the completion of the project. When these Ops have not agreed and accepted their unlawful demand.  Hence with ulterior motive the complainant has filed this frivolous complaint.

21. The complainant has not paid the entire sale consideration amount even today the Ops are ready to execute the registered sale deed in her favour if she pay the entire sale consideration amount.  It is further case of the OP that they have got the sale agreement cancelled by Smt.T.Rajakumari on 17.12.2021.  There is no intention to cheat the complainant.

22. It is pertinent to note here that the complainant is not willing to purchase the schedule property in view of the sale agreement entered by the Ops in respect of the schedule property in favour of Smt.T.Rajakumari as per Ex.P8.  The Ops have also placed the copy of the cancellation deed of agreement of sale dated 27.02.2019.  The complainant is not at all a party in the said cancellation agreement.  Hence the complainant has not got the schedule property as per the cancellation agreement executed by Smt.T.Rajakumari.

23. The complainant has entered into the sale and construction agreement and paid substantial amount towards the sale consideration by entering into tripartite agreement in the year 2018 itself.  The Ops have neither completed the project nor handed over the possession of the schedule property in favour of the complainant.  In the mean time, the Ops have also entered into agreement to Smt.T.Rajakumari, relating to the schedule property which was earlier allotted in favour of the complainant after receiving substantial sale consideration amount of Rs.38,60,748/-.

24. When the Ops have not honored the registered sale agreement and construction agreement entered between themselves and the complainant and they have again executed the sale agreement in favour of Smt.T.Rajakumari by ignoring the sale agreement and construction agreement entered between themselves and the complainant.  Even in the cancellation of sale agreement executed by the said Rajakumari the complainant is not at all a party. Under these circumstances, the complainant is entitling for refund of the sale consideration amount paid to the Ops.

25. The complainant has filed this complaint in the year 2021 and the project was not at all completed even at the time of filing of this complaint.  The Ops have to complete the project as per the sale agreement within December 2020. Ops have not at all produced any documents before this commission to show that they have completed the project and they are ready to execute the registered sale deed in favour of the complainant by receiving the sale consideration.  

26. The complainant has invested the amount in the project of the Ops in the year 2018 itself and she has sustained financial loss and mental agony when they have fraudulently entered into the sale agreement with Smt.T.Rajakumari.  If really the Ops are willing to sell the schedule property in favour of the complainant they would have made the complainant also a party in the cancellation of sale agreement executed by Smt.T.Rajakumari.  Under these circumstances it is clear that the Ops are not at all ready to execute the registered sale deed in favour of the complainant in respect of the schedule property.  Under these circumstances the complainant has clearly established the deficiency of service, negligence and unfair trade practice on the part of the Ops.  The complainant has claimed the relief only against OP1 to 3 and the OP4 to 17 are formal parties and not claimed any relief against OP4 to 17.  Hence OP1 to 3 are jointly and severally liable to pay the advance amount and compensation. Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.
27. 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. OP1 to 3 are jointly and severally liable to pay the amount. 
3. The OP1 to 3 are hereby directed to pay Rs.38,60,748/- with interest at 9% p.a., from the date of receipt of the same till the date of realization.  
4. The OP1 to 3 are further directed to pay Rs.2,00,000/- as compensation with litigation expenses of Rs.20,000/-  to the complainant.
5. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 12% p.a. after expiry of 60 days on Rs.38,60,748/- till final payment.
6. 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 13^TH day of JULY, 2023)

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

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

NIL