Date of Filing:24/07/2018
Date of Order:30/01/2019
BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE - 27.
Dated: 30THDAY OF JANUARY 2019
PRESENT
SRI.H.R. SRINIVAS, B.Sc., LL.B. Rtd. Prl. District & Sessions Judge And PRESIDENT
SRI D.SURESH, B.Com., LL.B., MEMBER
COMPLAINT NO.1235/2018
COMPLAINANT/s | | Sri S.VijayKumar Naidu, S/o Late M.Sesham Naidu, Aged abut 54 years, No.118,“Vaishnavi MEG Layout,” “A” Narayanapura, K.R Puram, Bangalore -560 016. (Sri.B.M.Sunil Kumar Adv. for Complainant) |
| |
Vs
OPPOSITE PARTIES | 1 | M/s. K.R.K. PROPERTIES PVT.LTD., No.215, 3rd Main, 5th Cross, Behind ITI Layout, Geology Layout, Nagarbhavi, Bangalore 560 056, Represented by its Director. |
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| 2 | SRI. K.R.KANNAN R/at: 201, Site No.62, Akasha Deepam, 1st A Main Road, SLV Layout, 3rd Stage, Nayandanahalli, Bangalore 560 026. (Sri Y.A. Nagaraj Adv for O.P No.1 & 2) |
ORDER
BY SRI.H.R.SRINIVAS, PRESIDENT.
1. This Complaint is filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Parties (herein referred in short as O.Ps) alleging the deficiency in service in not executing and registering the Sale Deed in his favour by receiving the balance sale consideration in terms of agreement of sale deed dated 25.07.2016 for its registration and for possession, and in the alternate direct O.P to refund the earnest money of Rs.7,00,000/- with interest at 12% per annum from the date of payment up to the date of full and final payment and to pay Rs.5,00,000/- towards compensation for mental agony, stress and sufferance and such other reliefs as this Hon’ble Forum deems fit.
2. The brief facts of the complaint are that; the O.Ps are registered company, registered under companies Act and O.P.No.2 is the director of O.P.No.1 and developed residential layout. The O.Ps offered to sell the site in survey No.104 of Cholappanhalli Village, Kasaba Hobli, Hoskote Taluk known as “THE RESIDENCY” by KRK Properties Pvt. Ltd., for total sale consideration of Rs.13,50,000/- and received part consideration of Rs.7,00,000/- through cheque bearing No.048529 dated 18.01.2012 drawn on Axis Bank Ltd., M.G. Road Branch, Bangalore and same was acknowledged by issuing receipts. He was waiting for further instructions and for execution of sale deed by receiving the balance of sale consideration. When the complainant contacted the OPs, they informed that there is some legal impediment with regard to the title of the propriety in respect of the ‘THE RESIDENCY’ project and informed that they have made alternative arrangement due to the failure of the afore said project. Even after waiting for a considerable period of time, O.Ps did not register the said site by receiving the balance of sale consideration though he requested by writing letters. On 25.7.2016 O.Ps entered into a fresh agreement of sale in his favour and agreed to execute the sale deed within 11 months from thereon. Inspite of it, they did not execute the sale deed and register the same though he was ready and willing to pay the balance of sale consideration of Rs.6,50,000/- . Left with no other option, the complainant issued a Legal notice on 09.07.2018. Inspite of it, they have neither replied nor come forward to execute the sale deed and put the complainant in possession of the site or refunded the advance amount received from him. Hence the compliant.
3. Upon the issue of notice, O.P No.1 and 2 appeared through their advocate. Inspite of filing vakalath they did not file their version. Counsel for O.P filed application seeking permission of the Forum to file version which was allowed by imposing cost of Rs.500/- on the O.Ps. Inspite of it, O.ps neither appeared nor paid the cost and filed the version. Hence Forum took it as O.Ps are not interested in filing the version and recorded the evidence of the complainant and received the documents filed by him. O.ps have not adduced any evidence.
4. In order to substantiate their case, Complainant has filed his affidavit and produced documents. Heard the arguments. The following points have arise for our consideration:-
(1) Whether the complainant has prove
deficiency in service on the part of the O.Ps?
(2) Whether the complainant is entitled to
the relief prayed for in the complaint?
5. Our answers to the above points are:-
POINT 1: In the Affirmative.
POINT 2: Partly in the affirmative
As per the final order:
REASONS
POINT No.1:-
6. On perusal of the pleadings of the complainant and the evidence on record, it is an undisputed fact that, the complainant with an intention to purchase residential site in the proposed layout named as “THE RESIDENCY” to be formed by the O.Ps entered into agreement and paid amount Rs.7,00,000/- to the O.Ps as mentioned above towards the part consideration.
7. Further on perusal of the evidence,O.P being the company, has not stated anything regarding the completion of the layout formation, registering the sale deed in favour of the complainant. If at all it has completed the layout formation in all respect, and ready for registration,it would have demanded the complainant to pay the balance of sale consideration and to get the registration of the sale in his favour. Even after waiting for a considerable period of time and even after receiving reminders and legal notice and even after extending the agreement of sale by entering into a fresh agreement, did not come forward to register the sale deed in favour of the complainant and handing over the said site by receiving the balance of sale consideration which amounts to deficiency in service and not refunding the sale consideration amount received in spite of legal notice amounts to unfair trade practice. Hence we answer Point No.1 in the Affirmative.
POINT NO.2:
8. It is noteworthy to mention that, the agreement is a contract which is enforceable by law. Particularly in this case, every man is always dreaming to have his own house for which he will strenuously work to earn money to have it. Accordingly the complainant also paid his hard earned money to the O.Ps with an intention to purchase site. O.Ps are bound by the terms and conditions of the agreement and if for any reasons they fail to carry-out the agreement, they have no right to retain the hard earned money of the complainant.
9. Under the circumstances, we direct O.ps to execute the sale deed by receiving the balance of sale consideration i.e. Rs.6,50,000/- within three months and to put the complainant in possession of the property i.e. site No.101 in ‘THE RESIDENCY’ of Cholappanahalli Village as per the schedule of the Sale Agreement dated 25.07.2016 failing which to pay a sum of Rs.7,00,000/- to the complainant being the advance sale consideration received by them along with interest at the rate 12% per annum from the date of sale agreement dated 25.07.2016 till payment. Due to the act of the O.Ps in not forming the sites, not executing and registering the sale and not handing over the said site, has naturally made the complainant to loose his mental peace, put him under mental tension, physical strain and financial loss. Had they invested the same amount in any of the real estate properties, the value of the property would have increased by five to six times and the complainant has lost the capital appreciation of the property. Hence we are of the opinion that if a sum of Rs.25,000/- towards damages awarded to the complainant and Rs.10,000/- towards cost of proceedings and litigation expenses would meet the ends of justice. In view of the same, we answer point No.2 Partly in the Affirmative and pass the following:
ORDER
1. The complaintis hereby partly allowed with cost.
2. O.P No.1 and 2 are jointly and severally hereby directed to execute the sale deed by receiving the balance of sale consideration i.e. Rs.6,50,000/- within three months and to put the complainant into the possession of the property i.e. site No.101 in THE RESIDENCY of Cholappanahalli Village as per the schedule of the Sale Agreement dated 25.07.2016 failing which to pay a sum of Rs.7,00,000/- to the complainant being the advance sale consideration received by themalong with interest at the rate 12% per annum from the date of sale agreement dated 25.07.2016 till payment.
3. Further O.Psarehereby directedto pay Rs.25,000/- towards damages to the complainant and Rs.10,000/- towards cost of proceedings and litigation expenses.
4. The O.Ps are hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.
Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.
(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 30th Day of JANUARY 2019)
MEMBER PRESIDENT
ANNEXURES
1. Witness examined on behalf of the Complainant/s by way of affidavit:
PW.1 – S.Vijaykumar Naidu - Complainant
Copies of Documents produced on behalf of Complainant/s:
Ex.P1:Copy of the Agreement of Sale dated 25.07.2016
Ex.P2:Copy of the Agreement of Sale dated 23.07.2013
Ex.P3:Copy of the letter dated 13.05.2016.
Ex.P4:Copy of the letter dated 23.06.2016.
Ex.P5:Copy of the letter dated 25.07.2016.
Ex.P6:Copy of the letter dated 23.10.2017.
Ex.P7 & P8:Postal acknowledgments.
Ex.P9: Copy of the legal notice dated 09.07.2018.
Ex.P10: Postal receipts.
Ex.P11:Postal acknowledgments
Ex.P12:Postal cover.
Ex.P13:Copy of the brochure.
Ex P14: Copy of the layout plan.
2. Witness examined on behalf of the Opposite party/s by way of affidavit:
RW-1: Sri K.R. Kannan for O.p.No.2.
Copies of Documents produced on behalf of Opposite Party/s
- Nil -
MEMBER PRESIDENT
