Date of Filing:19/07/2017

Date of Order:20/07/2018

BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated: 20^TH DAY OF JULY 2018

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.2075/2017

Vs

ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

1.     The 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 handing over the site agreed to be sold in her favour and for direction to the Opposite  parties to execute and register Sale Deed in her favour by receiving the balance of sale consideration in terms of agreement of sale dated 05.2.2015 and in the alternative O.Ps to refund the earnest money with interest at 12% per annum form the date of payment till full and final payment is paid and further O.Ps to pay a sum of Rs.2,00,000/- for causing mental agony, inconvenience, stress sufferance to her and such other reliefs as this Hon’ble Forum deems fit. 

2.     The brief facts of the complaint are that; the O.P.No.1 is a private limited company engaged in the business of developing residential layout, O.P.No.2 is its Managing Director. The O.Ps offered to sell  the site No.375 in Sy.No.80 for Rs.12,75,000/- to be developed by them at Cholappanahalli Village, Kasaba Hobli, Hosakote Taluk and project was named as ‘THE RESIDENCY’ and also entered into agreement of sale and received part consideration of Rs.3,00,100/- paid through NEFT on 29.11.2013 and 02.12.2013.   She was waiting for further instructions and she was waiting for execution of sale deed by receiving the balance of sale consideration. The 2^nd O.P. One K.R. Raja additional director, Smt.Beena and Prabhakar both managers informed her that they are waiting for the  permission from the Government for execution of the sale deed and gave false assurance. During December 2014 K.R. Raja informed that since they have formed a new procedure, requested her to return the allotment letter so that they would execute another instrument in her favour. On 6.2.2015 they executed an agreement of sale and also acknowledged receipt of Rs.3,00,100/-. It was also stipulated therein that they would not extend the time limit for more than 6 to 8 months from the date of said agreement to execute the sale deed. But one reason or the other, they went on postponing the execution of the sale deed. On 12.5.2016 it was learnt that the director K.R. Raja who entered into the agreement, committed suicide. She is willing to pay the balance of sale consideration whereas O.ps have not at all coming forward to execute the sale deed and register the same by receiving the balance of sale consideration. Legal notice was also issued on 24.4.2017. Inspite of it, they have neither replied nor executed the sale deed. The cause of action for the compliant arose on 6.2.2015 when O.P executed a new agreement of sale and hence this compliant.

3.     After admitting this complaint and after ordering to issue notices to the O.Ps., the notice sent to them was not served. Hence this Forum ordered for substitute of service by way of paper publication and the same was published in the local Kannada Daily newspaper by name “KANNADA PRABHA” dated 29.4.2018. Inspite of it, O.Ps did not appear before this Forum. Hence this Forum held the publication of the notice as sufficient service and placed them exparte.   

4.     In order to substantiate the case, the complainant by filing his affidavit examined himself  by producing documents. Heard the arguments.        The following points arise for our consideration:-

                        1)   Whether the complainant has proved

                     deficiency in service on the part of the

                    Opposite Parties?

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

                for the following:

REASONS

POINT No.1:-

6.     On perusal of the pleadings of the parties 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’ formed by the O.Ps entered into agreement and paid amounts to the O.Ps as mentioned above.

7.   Further on perusal of the evidence,O.P.No.1 being the company and O.P.No.2 being its Managing Director, have not stated anything regarding the completion of the layout formation, and registering the sale deed in favour of the complainant. If at all they have completed the layout formation in all respect, and ready for registration, they would have demanded the complainant to pay the balance of sale consideration and to get the registration of the sale in her favour.  Inspite of receiving the notice issued by the complainant and also by this Forum, have kept quiet and they have not stated anything in this regard in the version filed by O.P.No.1. The documents produced clearly shows that O.P.No.1 is a registered company with Registrar of Companies having its registered office at Hampi Nagar, Bangalore. Hence it is not a partnership firm, wherein all the partner had to agree for the sale. When such being the case, O.Ps though served with notice, did not appeared before the Forum and not submitted their version, by denying or accepting the allegations and the averments made.

8.    As a director of the company, K.R Raja has entered into agreement of sale by receiving Rs.3,00,100/- and further agreed to Receive Rs.9,74,900/- being the balance sale consideration and further agreed to get the sale deed registered. He has also undertaken to provide the required facilities for the formation of the residential sites.  He has signed this agreement of sale for and on behalf of K.R.K properties Ltd., as a director. When such being the case it cannot be held that the transaction is a private one between K.R.Raja and the complainant.

9.     Inspite of the legal notice issued, O.Ps have failed to execute the sale deed and also get it registered in favour of the complainant which amounts to deficiency in service and further in not refunding the advance sale consideration received is  an unfair trade practice. Hence we answer Point No.1 in the Affirmative.

POINT NO.2:

10.   It is note worthy to mention that, all the agreements are contracts which are enforceable by law. Particularly in these cases, every man is always dreaming to have its own dream house and for which he will strenuously work to earn money and their hard earned money will save to have their home. Accordingly the complainant also paid their hard earned money to the O.Ps with an intention to purchase site properties but the O.Ps should bind to the agreements and if any reasons they failed to carry-out the agreements, they have no right to retain the hard earned money of the complainant.  Every agreement should be a covenant also.  A contract is maintained through external force of law, whereas a covenant has an internal moral basis and maintain through loyalty and responsibility.  Whereas the O.Ps failed in their responsibility and the complainant proved not only deficiency in service on the part of the O.Ps and the O.Ps without refunding the amount to the complainant it attracts unfair trade practice also.

11.  Under the circumstances, we hold O.P.No.1 and 2 jointly and severally liable to pay the amounts paid by the complainant i.e., Rs.3,00,100/- as shown in the agreement along with interest at the rate 12% per annum from the date of Agreement of Sale dated 6.2.2015 till payment of the same. Further the complainant has claimed compensation of Rs.2,00,000/- towards physical and mental harassment. No concrete evidence has been placed in that respect. Inspite of it, having paid the advance sale consideration, hoping for the registration of the site in their favour since 2015, they have lost their mental piece, put to 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 complainants have 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. Hence, we answer Point No.2 Partly in the Affirmative and pass the following:

ORDER

1. The complaint is hereby partly allowed with cost.

2. O.P.No.1 and 2 are jointly and severally hereby directed to pay a sum of Rs.3,00,100/- to the complainant being the advance sale consideration received by them along with interest at the rate 12% per annum from the date of Agreement of Sale i.e. 6.2.2015 till payment.

3. Further O.P.No.1and 2 are jointly and severally hereby directed to pay Rs.25,000/- towards damages to  the complainant and Rs.10,000/-  towards cost of proceedings and litigation expenses.

4.  The O.P No.1 and 2 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.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 20^th Day of JULY 2018)

MEMBER                        PRESIDENT

*RAK

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex.P1: Copy of the Agreement of Sale dated 06.02.2015

Ex.P 2:Legal Notice dtd:24.4.2017.

Ex.P.3:Postal receipts (5 in Nos.)

Ex.P 4:Postal covers  & acknowledgments

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

- Nil -

Copies of Documents produced on behalf of Opposite Party/s

- Nil -

MEMBER                        PRESIDENT